FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v Channic Pty Ltd (No 4) [2016] FCA 1174 File number: QUD 536 of 2013 Judge: GREENWOOD J Date of judgment: 30 September 2016 Catchwords: CONSUMER LAW – consideration of contended contraventions of ss 113, 114, 115, 116, 117, 118, 121 and 123 of the National Consumer Credit Protection Act 2009 (Cth) CONSUMER LAW – consideration of contended contraventions of ss 128, 129, 130, 131 and 133 of the National Consumer Credit Protection Act 2009 (Cth) CONSUMER LAW – consideration of contended contraventions of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) CONSUMER LAW – consideration of contended contraventions of s 76 of the National Credit Code, Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) Legislation: National Consumer Credit Protection Act 2009 (Cth), ss 113, 114, 115, 116, 117, 118, 121, 123, 128, 129, 130, 131 and 133 National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth), ss 167 and 169, Schedule 1 Australian Securities and Investments Commission Act 2001 (Cth), ss 12CB, 12CC Acts Interpretation Act 1901 (Cth), s 36 Cases cited: Paciocco v Australia and New Zealand Banking Group Limited (2016) 90 ALJR 835; [2016] HCA 28 Maxwell v Murphy (1957) 96 CLR 261 Jones v Dunkell (1959) 101 CLR 298 Hamilton v Whitehead (1988) 166 CLR 121; (1989) 7 ACLC 34 Yorke v Lucas (1985) 158 CLR 661 Re Waterfront Investments Group Pty Ltd (in liq) (2015) 105 ACSR 280; [2015] NSWSC 18 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) (2014) 98 ACSR 347. Date of hearing: 1 December 2014 to 10 April 2015 Date of last submissions: 10 April 2015 Registry: Queensland Division: General Division National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Category: Catchwords Number of paragraphs: 1850 Counsel for the Applicant: Mr R Derrington QC and Mr S Seefeld Solicitor for the Applicant: Mr H Copley, Australian Securities and Investments Commission Counsel for the Respondents: Dr R Spence Solicitor for the Respondents: Dr R Spence, Integrity Criminal Legal ORDERS QUD 536 of 2013 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Applicant AND: CHANNIC PTY LTD (ACN 141 145 753) (and others named in the Schedule) First Respondent JUDGE: GREENWOOD J DATE OF ORDER: 30 SEPTEMBER 2016 THE COURT ORDERS THAT: 1. The applicant is directed to submit to the Court within 14 days proposed declarations and orders to be made in conformity with the findings in the reasons for judgment published today. 2. The costs of and incidental to the proceeding are reserved for later determination. 3. The parties are directed to file submissions in relation to the costs of the proceedings within 21 days. 4. The question of the determination of a pecuniary penalty in respect of the various contraventions is to be determined in a separate proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: PART 1: The Statutory Background 1 In 2009, the Commonwealth Parliament enacted the National Consumer Credit Protection Act 2009 (Cth) (the "NCCP Act"). Schedule 1 to the NCCP Act is the National Credit Code. 2 Sections 3 to 337 of the NCCP Act (essentially the entirety of the NCCP Act) and the National Credit Code (having effect as a law of the Commonwealth; s 3, NCCP Act) commenced on 1 April 2010 (by Proclamation), subject to transitional arrangements contained in the National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009 (Cth) (the "Transitional Provisions Act"). 3 Prior to the enactment of the NCCP Act and the Transitional Provisions Act, the States and Territories had made provision for, put simply, a statutory regime for the regulation of transactions and arrangements concerning the provision of credit or advice about credit, to consumers, described in s 4(1) of the Transitional Provisions Act, as the "old Credit Code". The object of Schedule 1 of the Transitional Provisions Act is to provide a "smooth transition" from the old Credit Code "of a referring State or Territory" to the new National Credit Code under the NCCP Act whilst accommodating the principles set out at Item 2(1)(a) and (b) of Schedule 1 of the Transitional Provisions Act. 4 That transition was effected by Schedule 1 to the Transitional Provisions Act. Relevantly for present purposes, Items 1 to 21 of Schedule 1 commenced on 1 April 2010. Item 19 of Schedule 1 provides that Chapter 3 of the NCCP Act, which addresses the topic of "responsible lending conduct" applies on and after 1 January 2011 being a date described as the "Chapter 3 start date" (rather than 1 April 2010). Notwithstanding the Chapter 3 start date of 1 January 2011, Item 19(2) of Schedule 1 provides that 31 sections of Chapter 3 of the NCCP Act apply in relation to particular conduct in the period commencing on 1 July 2010 and ending on 1 January 2011 (when Chapter 3 generally starts). 5 Thus, the relevant interim transitional period is 1 July 2010 to 1 January 2011. 6 Relevantly for present purposes, ss 128, 129, 130, 131 and 133 of Chapter 3 applied from 1 July 2010 in relation to particular conduct and so too ss 115, 116, 117, 118 and 123 of Chapter 3 from 1 July 2010. 7 Sections 113, 114 and 121 apply from 1 January 2011. 8 Chapter 2 of the NCCP Act casts an obligation on all persons who engage in "credit activities" to be licensed under the NCCP Act and in general a person cannot engage in a credit activity if the person does not hold an "Australian credit licence" within the meaning of s 35 of the NCCP Act. 9 Schedule 2 to the Transitional Provisions Act addresses the topics of "transitional authorisation" of persons to engage in credit activities and "prohibitions" upon engaging in credit activities in the period 1 July 2010 to 31 December 2010 and also from 1 January 2011 to 30 June 2011. Part 3 of Schedule 2 addresses the topic of "registration" of persons who engage in credit activities and the application process for registration in the period 1 April 2010 to 30 June 2010 (among other matters). 10 Item 36(2) of Schedule 2 provides that ss 128, 129, 130, 131 and 133 of the NCCP Act apply to a "registered person" during the period 1 July 2010 to 1 January 2011 as if all references to a licensee in those provisions were references to a registered person or a licensee and, on the same footing, ss 115, 116, 117, 118 and 123 apply in the same period to a registered person. 11 Sections 113, 114 and 121 apply from 1 January 2011. 12 It is now necessary to say something about these provisions, in context, as they applied at the time of the conduct in issue. 13 The NCCP Act was introduced to prescribe conduct of relevant participants where: "credit products in the market has made it much less straightforward for consumers to determine whether a product is suitable for their needs and [has] increased their dependence on intermediaries" and "[a]s a result there are considerable information asymmetries that justify regulatory intervention": Revised Explanatory Memorandum for the National Consumer Credit Protection Bill 2009 (the "REM"), p 28. 14 As to the obligations cast upon credit providers by the NCCP Act, the REM for the Bill at [3.25] says this: The primary obligations in relation to the provision of credit (for example, lending); or the provision of credit assistance (for example, suggesting a particular credit contract or assisting with a particular credit contract) are: to make an assessment that the loan is not unsuitable for the consumer; and to assess that the consumer has the capacity to meet the financial obligations under the contract without substantial hardship. 15 As already mentioned, Chapter 3 of the NCCP Act is concerned with the topic of "responsible lending conduct" and Part 3-2 applies to licensees who are credit providers. Section 128 provides that a licensee must not enter into a credit contract with consumer, who will be the debtor under that contract, on a day (called the "credit day") unless the licensee has, within 90 days before the credit day: made an assessment that accords with s 129 and covers the period in which the credit day occurs; and made the inquiries and verification required by s 130. The words in italics represent the essential elements of the section. 16 A credit contract is a contract under which credit is or may be provided to which the National Credit Code applies: s 5, NCCP Act; ss 4 and 5, National Credit Code. It is uncontroversial in these proceedings that each loan contract as recited at [73] of these reasons is a credit contract. It is also uncontroversial that the borrower described at [73] of these reasons is a consumer: s 5, NCCP Act. 17 The assessment required by s 128 of the NCCP Act is an assessment that specifies the period the assessment covers and one that assesses whether the credit contract, if entered in that period, will be unsuitable for the consumer: s 129(a) and (b), NCCP Act. 18 As to the inquiries required by s 128, the licensee must do five things before making the assessment in accordance with s 129. Those five things, by s 130(1)(a) to (e) are: (a) make reasonable inquiries about the consumer's requirements and objectives in relation to the credit contract; and (b) make reasonable inquiries about the consumer's financial situation; and, (c) take reasonable steps to verify the consumer's financial situation; and (d) make inquiries prescribed by the regulations about any matter prescribed by the regulations; and (e) take any steps prescribed by the regulations to verify any matter prescribed by the regulations. 19 The assessment of whether the credit contract is unsuitable for the consumer is in some respects taken out of the hands of the licensee (or is, at least, the subject of additional statutory considerations) as s 131 provides that the licensee "must assess" the credit contract as unsuitable for the consumer if, at the time of assessment, it is likely, that, relevantly, the consumer will be unable to comply with the consumer's financial obligations under the contract or could only comply with those obligations with substantial hardship (if the contract is entered in the period covered by the assessment); or the contract will not meet the consumer's requirements or objectives if entered in the period covered by the assessment: s 131(2). 20 Section 131(4) sets out the only information to be taken into account for the purposes of s 131(2). 21 If the consumer requests a copy of the assessment before entering into the credit contract, the licensee must give a copy of it to the consumer before entering into the contract: s 132. 22 A credit contract with a consumer "is unsuitable" for the consumer if, at the time it is entered, relevantly: it is likely that the consumer will be unable to comply with his or her financial obligations under it or could only comply with those obligations with substantial hardship; or, the contract does not meet the consumer's requirements or obligations: s 133(2). If, having regard to s 133(2), a credit contract is unsuitable for a consumer (who will be a debtor under it), the licensee must not enter into the contract: s 133(1). 23 In determining whether the credit contract is unsuitable under s 133(2), the only information to be taken into account is information that satisfies both of the following integers: (a) the information about the consumer's financial situation, requirements or obligations; (b) the information the licensee had reason to believe was true or would have had reason to believe was true if the licensee had made the inquiries or verification under s 130: s 133(4). 24 Apart from obligations cast upon credit providers, Division 4 of Chapter 3 (Part 3-1) casts obligations upon credit assistance providers. 25 A person provides credit assistance to a consumer if, by dealing directly with the consumer (or his or her agent) "in the course of, as part of, or incidentally to", a business carried on by the person (or another person), the person, relevantly: suggests that the consumer apply for a particular credit contract with a particular credit provider (s 8(a), NCCP Act); or assists the consumer to apply for a particular credit contract with a particular credit provider (s 8(d), NCCP Act)). 26 The obligations cast upon such a person are very similar to the obligations cast upon a credit provider. 27 By s 115(1) a licensee must not provide credit assistance to a consumer on a day (called the "assistance day") by, relevantly, suggesting that the consumer apply, or assisting the consumer to apply, for a particular credit contract with a particular credit provider (s 115(1)(a)) unless the licensee has within 90 days before the assistance day: made a preliminary assessment which accords with s 116(1) and which covers the period proposed for the entering of the contract (s 115(1)(c)); and made the inquiries and undertaken the verification in accordance with s 117 (s 115(1)(d)). 28 The preliminary assessment must specify the period the assessment covers (s 116(1)(a)) and assess whether the credit contract, if entered into, will be unsuitable for the consumer (s 116(1)(b)). 29 As to the inquiries and verification required by s 115(1)(d), the licensee must, before making the preliminary assessment do five things required by s 117(1) and they are: (a) make reasonable inquiries about the consumer's requirements and objectives in relation to the credit contract; and (b) make reasonable inquiries about the consumer's financial situation; and (c) take reasonable steps to verify the consumer's financial situation; and (d) make inquiries prescribed by the regulations about any matter prescribed by the regulations; and (e) take any steps prescribed by the regulations to verify any matter prescribed by the regulations. 30 The credit contract will be unsuitable for the consumer if, at the time of the preliminary assessment, it is likely that, relevantly: the consumer will be unable to comply with the consumer's financial obligations under the contract or could only comply with them with substantial hardship (s 118(2)(a)); or the credit contract will not meet the consumer's requirements or objectives (s 118(2)(b)), if, in either case, the contract is "entered in the period proposed for it to be entered". 31 If the credit contract will be unsuitable for the consumer, by reason of the s 118(2) factors, the licensee "must", for the purposes of the preliminary assessment under s 116(1), "assess that the contract will be unsuitable for the consumer": s 118(1). 32 The credit contract also will be unsuitable for the consumer if at the time the licensee provides the credit assistance it is likely that, relevantly, first, the consumer will be unable to comply with the consumer's financial obligations under the contract or could only comply with those obligations with substantial hardship, or, second, the contract will not meet the consumer's requirements or obligations, if in either case, the contract is entered into in the period proposed for it to be entered: s 123(2) 33 Section 123(1) provides that a licensee must not provide credit assistance to a consumer by suggesting that the consumer apply, or by assisting the consumer to apply, for a particular credit contract with a particular credit provider if the credit contract will be unsuitable for the consumer under s 123(2): s 123(1). 34 Sections 113, 114 and 121 of Chapter 3 of the NCCP Act commenced on 1 January 2011. Section 113(1) provides that a licensee must, as soon as practicable after it becomes apparent to the licensee that it is likely to provide credit assistance to a consumer in relation to a credit contract, give the consumer the licensee's credit guide in accordance with s 113(2). Section 113(2) sets out approximately 16 matters the licensee's credit guide must address. 35 Section 114 provides that a licensee must not provide credit assistance of the kind described, relevantly, at s 114(1)(a), unless the consumer has been given a quote in accordance with s 114(2), the consumer has signed and dated the quote or otherwise accepted it and has been given a copy of the "accepted quote". 36 Section 121 provides that the licensee must at the same time as providing credit assistance to a consumer (by, relevantly, suggesting that the consumer apply, or by assisting the consumer to apply, for a particular credit contract with a particular credit provider), give the consumer a credit proposal disclosure document that satisfies the mandatory requirements of s 121(2). 37 Section 76(1) of the National Credit Code provides, relevantly, that the Court may, if satisfied on the application of a debtor or mortgagor, that, in the circumstances relating to the relevant credit contract or mortgage at the time it was entered into, the contract or mortgage was unjust, re-open the transaction that gave rise to the contract or mortgage. Section 76(2) provides, relevantly, that in determining whether a term of a particular credit contract or mortgage is unjust in the circumstances relating to it at the time it was entered into (or changed), the Court is to have regard to the public interest and to all the circumstances of the case and may have regard to 16 matters set out at (a) to (p) of s 76(2), including "any … relevant factor". In determining whether a credit contract is unjust, the Court is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable when the contract was entered into: s 76(4). 38 The position in relation to the application of s 12CB of the Australian Securities and Investments Commission Act 2001 (Cth) (the "ASIC Act") requires a little elaboration. In the period, relevantly, 2010 and up to and including 31 December 2011, s 12CB of the ASIC Act provided that a person must not, in trade or commerce, in connection with the supply (or possible supply) of financial services to a person, engage in conduct that is, in all the circumstances, unconscionable: s 12CB(1). "Financial services" in this section is a reference to financial services of a kind ordinarily acquired for personal, domestic or household use: s 12CB(6). The statutory "requirement" of s 12CB(1) requires the Court to consider the conduct of the supplier of the financial service in "all the circumstances": Paciocco v Australia and New Zealand Banking Group Limited (2016) 90 ALJR 835; [2016] HCA 28, Keane J at [294]. See, however, the circumstances falling within s 12CB(4)(a), below. 39 Without limiting the matters to which the Court may have regard for the purpose of determining whether a supplier of a financial service to a consumer has contravened s 12CB(1), s 12CB(2) sets out five matters to which the Court may have regard. They are these: (a) the relative strengths of the bargaining positions of the supplier and the consumer; and (b) whether, as a result of conduct engaged in by the supplier, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and (c) whether, the consumer was able to understand any documents relating to the supply or possible supply of the services; and (d) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the services; and (e) the amount for which, and the circumstances under which, the consumer could have acquired identical or equivalent services from a person other than the supplier. 40 For the purpose of determining whether a person has contravened s 12CB(1), the Court must not have regard to "any circumstances" that were not reasonably foreseeable at the time of the alleged contravention: s 12CB(4)(a). 41 So far as the supply of financial services is concerned, s 12CC(1) prohibits (as the section stood up to and including 31 December 2011) a person from engaging in conduct that is, in all the circumstances, unconscionable, in connection with the supply (or possible supply) of those services to another person (other than a listed public company), where the acquisition of the service is or would be for the purpose of trade or commerce (that is, a business transaction rather than a consumer transaction): s 12CC(1)(a) and s 12CC(6). 42 Without "in any way" (a phrase not present in s 12CB(1)) limiting the matters to which the Court may have regard in determining whether a person has contravened s 12CC(1), the Court may have regard to 12 matters set out at s 12CC(2)(a) to (k). Apart from the particular matter of the business capacity of the recipient of the service for the purposes of s 12CC(1), the factors at s 12CC(2)(a) to (e) are in the same terms as the factors recited at s 12CB(2)(a) to (e) in relation to consumer transactions. 43 However, ss 12CB and 12CC were amended effective from 1 January 2012 giving rise to the "new s 12CB" and the "new s 12CC" of the ASIC Act, with the result that the earlier provisions were, in effect, unified in a single statutory prohibition upon unconscionable conduct. 44 The new s 12CB prohibits a person from engaging in conduct, in trade or commerce, that is, in connection with the supply of financial services (relevantly for these proceedings), unconscionable, in all the circumstances. 45 The new s 12CB and the prohibition within it no longer retains the prior distinction between the supply of financial services "of a kind ordinarily acquired for personal, domestic or household use" (a consumer transaction: the old ss 12CB(1) and 12CB(5)) on the one hand, and the supply of financial services in business transactions (the old ss 12CC(1) and 12CC(6)) on the other hand. 46 Although the language of the new s 12CB(1), as to the supply of financial services, is in similar terms to the earlier s 12CB(1), it is nevertheless an entirely new provision not limited to what might loosely be called consumer transactions yet applying to them according to the integers of the new section and also other supply circumstances. 47 The new s 12CC(1) sets out 12 matters to which the Court may have regard in determining whether a person has contravened the new unified s 12CB(1) in the supply of financial services, without limiting the matters to which the Court may have regard. In other words, the 12 matters recited at s 12CC(1) are non-exhaustive. The 12 matters set out in the new s 12CC(1)(a) to (l) are essentially in the same terms as those set out in the earlier s 12CC(2)(a) to (k) although those earlier factors were expressly considerations relevant to possible contraventions of the bifurcated version of the prohibition as it applied to financial supply transactions to business recipients. 48 As mentioned, that distinction is now gone. 49 The new s 12CB(4) sets out the intention of the Parliament with respect to the new s 12CB. 50 The new s 12CB(3) provides (like the earlier s 12CB(4)(a)), that in determining whether a person has contravened s 12CB(1), the Court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention. The new s 12CB(3)(b) provides that in determining whether a person has contravened the new s 12CB(1), the Court "may have regard to conduct engaged in, or circumstances existing, before the commencement of this section" [emphasis added]: that is, prior to 1 January 2012. The earlier s 12CB contains s 12CB(4)(b) which is in the same terms as s 12CB(3)(b) except, of course, that subsection operates by reference to the commencement date of the earlier s 12CB. 51 Orthodoxy requires that the relevant prohibition (as a matter of substantive law) against which the conduct of Channic is to be considered is s 12CB as it stood (in relation to conduct up to 31 December 2011) at the time of the contended contraventions informed by the matters at s 12CB(2) as it stood, among any other considerations the Court regards as relevant to the conduct, "in all the circumstances". The new ss 12CB(1) and 12CC(1) apply to the conduct of the first respondent occurring on and from 1 January 2012. Section 7(2)(b) and (c) of the Acts Interpretation Act 1901 (Cth) provide that if an Act amends an Act or part of an Act, the amendment does not affect the previous operation of the affected Act (or part) or affect any liability accrued or incurred under the amended Act. The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect liabilities which the law had defined by reference to past events (leaving aside the application of the difficult distinction between substantive rights and liabilities on the one hand and procedural and remedial matters on the other hand): Maxwell v Murphy (1957) 96 CLR 261 at 267, Dixon CJ. 52 Having regard to new s 12CB(3)(b), a question arises of whether the new ss 12CB and 12CC evince a parliamentary intention to apply retrospectively to conduct prior to 1 January 2012. Obviously enough, the new s 12CB in some respects looks back to earlier facts or events in the sense that s 12CB(3)(b) enables the Court to have regard to conduct engaged in, or circumstances existing before 1 January 2012. This provision does not mean, however, that the content of the prohibition in the new s 12CB(1) applies to conduct prior to 1 January 2012. It simply means that in determining whether a person has contravened the new s 12CB(1) by engaging in unconscionable conduct, in all the circumstances, on and from 1 January 2012, the Court may have regard to conduct occurring before that date or circumstances existing before that date. 53 There is no express or inferential intention to apply the new s 12CB or s 12CC to facts or events prior to 1 January 2012. 54 That being so, a further question arises, in relation to the application of the pre-amendment provisions, of whether the seven further factors set out in s 12CC(2) as applying to "business transactions" nevertheless relevantly inform the question of whether a person has contravened s 12CB(1), as the five factors set out at s 12CB(2) (see [39] of these reasons) are non-exhaustive considerations which do not operate to limit the matters to which the Court may have regard for the purpose of determining whether a person has engaged in unconscionable conduct in the supply of financial services. 55 It seems to me that those additional seven factors at s 12CC(2) may well be matters to which the Court may have regard in determining whether a contravention of s 12CB(1) has occurred in all the circumstances of the case. Those matters may give "guidance" as to the content of the notion of unconscionability. They may assist in setting a framework for the values that lie behind the notion of the relevant conscience of the supplier of the financial service to a consumer. In that regard, see the observations of Allsop CJ in Paciocco v Australia and New Zealand Banking Group Limited (2015) 236 FCR 199; [2015] FCAFC 50 at 285. Allsop CJ also took the view that the factors contained in the new s 12CC(1) also inform the content of the notion of the relevant conscience of the parties. As already mentioned, the 12 factors in the new s 12CC(1) are in substantially the same terms as the 12 factors in the earlier provision, s 12CC(2)(a) to (k). The statute, by s 12CB(2) gives particular attention to the five factors identified at [39] of these reasons although those matters, do not limit, expressly, the matters to which the Court may have regard for the purpose of determining whether a person, in trade or commerce, has engaged in unconscionable conduct in the supply of financial services. Those other matters that might be taken into account include the additional matters mentioned at s 12CC(2)(f) to (k) where relevant and material having regard to the circumstances of engagement between the supplier of the financial service and the individual consumer. These reasons are arranged in the following way according to the following topics: PART SUBJECT MATTER PAGE Part 1 The statutory background 1 Part 2 The originating application and some related matters 12 Part 3 The position reached by the parties on the face of the pleadings 17 Part 4 The questions to be addressed so far as the NCCP Act is concerned 37 Part 5 The admissions 40 Part 6 The evidence of Ms Adele Kingsburra 46 Part 7 The Kingsburra documents 72 Part 8 The evidence of Mr Kevin Humphreys 79 Part 9 The evidence of Ms Prunella Kathleen Harris 96 Part 10 The evidence of Ms Kerryn Gerthel Smith 122 Part 11 The evidence of Mr William Damien Noble (called "Damien") and Ms Joan Cecily Noble 146 Part 12 The evidence of Ms Charlotte Mudu 169 Part 13 The evidence of Ms Donna Gayle Yeatman 186 Part 14 The evidence of Ms Muriel Grace Elizabeth Dabah 201 Part 15 The evidence of Ms Rhonda Lorraine Brim 215 Part 16 The evidence of Mr Vance Henry Gordon and Ms May Estell Stanley 235 Part 17 The evidence of Ms Leandrea Rose Raymond 245 Part 18 The precision in the evidence and the conduct of the proceedings 258 Part 19 The evidence of Mr Colin Hulbert 259 Part 20 The evidence of Mr Hulbert given in cross-examination 279 Part 21 The evidence of Mr Kevin Foo 310 Part 22 The evidence of Mr Michael Southon 311 Part 23 The evidence of Ms Tegan Green 323 Part 24 The evidence of Mr Shayne Muldoon and Ms Felilta Sky Eckermann 335 Part 25 The evidence of Ms Heidi Stafford 344 Part 26 The evidence of Ms Marnie Toohey 353 Part 27 The evidence of Ms Bobbie-Jo Lourie 365 Part 28 The evidence of Ms Angel Pokia 374 Part 29 The evidence of Mr Wayne McKenzie 382 Part 30 The evidence of Ms Georgina Bataillard 394 Part 31 The evidence of Mr Haydn Cooper 399 Part 32 The evidence of Mr Spiro Vasilakis 400 Part 33 Assessment of the evidence and conclusions on the questions in issue 427 PART 2: The Originating Application and some related matters 56 By its originating application, the applicant, the Australian Securities and Investments Commission ("ASIC") seeks the following declarations, injunctions and orders against the respective respondents. 57 The first respondent is Channic Pty Ltd ("Channic"). 58 As against Channic, ASIC seeks three declarations. 59 First, a declaration pursuant to s 166 of the NCCP Act that Channic has contravened ss 128, 130, 131 and 133 of the NCCP Act. 60 Second, a declaration that credit contracts entered into by Channic with consumers as described in the statement of claim were unjust within the meaning of s 76 of Schedule 1 to the NCCP Act otherwise described as the National Credit Code: as to the credit contracts see [73] of these reasons. 61 Third, a declaration that Channic, by engaging in the conduct recited in the statement of claim, engaged in unconscionable conduct in contravention of s 12CB of the ASIC Act. 62 The first two declarations form the basis upon which ASIC seeks the imposition of civil pecuniary penalties pursuant to s 167 of the NCCP Act on Channic for contraventions of ss 128, 130, 131 and 133 of the NCCP Act. 63 ASIC seeks an injunction pursuant to s 177 of the NCCP Act to restrain Channic from further contraventions of those sections of the NCCP Act and an injunction pursuant to s 12GD of the ASIC Act to restrain Channic from further engaging in unconscionable conduct within the meaning of s 12CB of the ASIC Act in relation to Channic's credit contracts with the consumers described in the table at [73] of these reasons or in relation to Channic's entry into any future credit contracts. 64 ASIC also seeks orders pursuant to s 76 of the National Credit Code that each of the credit contracts made between Channic and the borrowers described at [73] of these reasons be reopened and the borrowers be further relieved of any liability to Channic in relation to the credit contracts, the credit contracts be set aside ab initio and/or Channic repay to each of the borrowers the amounts paid by each of them under the respective credit contracts. 65 The second respondent is Cash Brokers Pty Ltd ("CBPL"). 66 As against CBPL, ASIC seeks a declaration that CBPL has contravened ss 113, 114, 115, 117, 118, 121 and 123 of the NCCP Act. 67 ASIC also seeks the imposition of civil pecuniary penalties pursuant to s 167 of the NCCP Act on CBPL for contraventions of ss 113, 114, 115, 117, 118, 121 and 123 of the NCCP Act. ASIC seeks an injunction under s 117 of the NCCP Act to restrain CBPL from further contravening these provisions in relation to the entry by CBPL into any future credit contracts. 68 The third respondent is Mr Colin William Hulbert. 69 At the time of the pleaded conduct, Mr Hulbert was the sole shareholder, sole director and controlling mind of Channic. He was also the duly authorised agent of that entity. He was the sole director of and a shareholder in CBPL. He was the controlling mind of that company and its duly authorised agent. As against Mr Hulbert, ASIC seeks a declaration that Mr Hulbert has contravened ss 113, 114, 115, 117,118, 121, 123, 128, 130, 131 and 133 of the NCCP Act. ASIC also seeks the imposition of civil pecuniary penalties on Mr Hulbert for contraventions of those sections of the NCCP Act. ASIC seeks an injunction restraining Mr Hulbert from further contravening those sections of the Act. 70 The originating application is supported by an extensive statement of claim (220 pages) setting out all of the material facts concerning the contended conduct contraventions. The allegations made by ASIC fall into three categories. ASIC describes, as the "principal category", those contended contraventions consisting of breaches of the responsible lending obligations under Chapter 3 of the NCCP Act by Channic and CBPL and the involvement of Mr Hulbert in those contraventions. 71 The second category consists of allegations of unconscionable conduct under s 12CB of the ASIC Act by Channic. 72 The third category consists of allegations that the loan contracts were "unjust transactions" under s 76 of the National Credit Code. 73 By its statement of claim, ASIC contends that contravening conduct occurred on the part of Channic in connection with steps taken (or not taken) by it in relation to transactions concerning the following consumers (in the order of the pleading) who entered into loan contracts (credit contracts) with Channic on the following dates in relation to the purchase of the following motor vehicles and that contravening conduct occurred on the part of CBPL in the provision of credit assistance to those consumers (except for Leandrea Rose Raymond) concerning those credit contracts: Borrower Vehicle Loan Contract Date Adele Dorothea Kingsburra 1997 Hyundai Elantra SE Sedan 13 July 2010 Prunella Kathleen Harris 1997 Ford Fairmont Ghia EL Sedan 20 September 2010 Vance Henry Gordon & Estell May Stanley 1993 Holden Barina Hatchback 29 September 2010 Rhonda Lorraine Brim 1990 Ford Spectron Station Wagon 22 September 2010 Kerryn Gerthel Smith 2001 Holden Commodore VX Station Wagon 15 April 2011 Joan Cecily Noble & William Damien Noble 1995 Mitsubishi Pajero GLX 2 March 2011 Muriel Grace Elizabeth Dabah & Estelle Harris 1998 Toyota Camry Conquest V2OR Sedan 16 July 2010 Charlotte Mudu & Aaron Elliott 1994 Holden Apollo Sedan 14 December 2010 Donna Gayle Yeatman & Farren Yeatman 1997 Holden Commodore Executive VT Sedan 16 September 2010 Leandrea Rose Raymond 1996 Hyundai Excel Hatchback 25 June 2012 74 All the vehicles were purchased by the consumers from an entity called ANG Hulbert & Associates Pty Ltd ("ANG") trading as either "SuperCheap Auto" or "SuperCheap Car Sales" which conducted the business of selling used motor vehicles initially from premises at 484 Mulgrave Road, Earlville (a suburb of Cairns) in Queensland and then from 132 Spence Street, Parramatta Park (Cairns) in Queensland. Mr Hulbert was the sole director, sole shareholder and controlling mind of ANG. The early history of the matter 75 The history of the matter is a little unusual in the following sense. 76 The respondents are represented (and were represented in the conduct of the trial) by Dr Robert Spence who conducts practice as a solicitor under the description "Integrity Criminal Legal" of Elizabeth Street, Sydney. On 3 October 2013, Dr Spence wrote an open letter to ASIC in which he said this in relation to these proceedings framed by the originating application and the statement of claim: I confirm that I am the solicitor acting for the Respondents in this matter. Mr Anthony Collins, barrister-at-law has a received a brief to appear in this matter. Mr Hulbert has confirmed on behalf of the Respondents that they do not wish to contest any of the orders set out in the application filed in the Queensland Federal Court by the Applicant. I am obliged for your co-operation in agreeing to communicating directly with Mr Collins in relation to these proceedings. 77 On 8 October 2013 the matter came before the Court for the first time for directions. All of the respondents were represented by Mr A.P.J. Collins of counsel. ASIC was represented by Mr Derrington QC. An affidavit was read by ASIC's counsel exhibiting Dr Spence's letter of 3 October 2013: affidavit Scott Edward Seefeld sworn 8 October 2013. ASIC also relied on an affidavit of Jamie William Black sworn 3 October 2013. 78 Mr Derrington observed that the statement of claim had been served (on 20 August 2013) but no defence had been filed and that it appeared that the respondents did not intend to file a defence as they had chosen not to contest the matters of fact set out in the statement of claim: T, p 3, lns 5-10; T, p 2, lns 22-23, 8 October 2013. Thus the matter would proceed to a hearing in which the questions of fact were to be uncontested. Mr Derrington correctly described the statement of claim as "both long and complicated" (T, p 3, ln 30). That is so because it asserts a lengthy factual matrix against the respondents involving all claims in respect of all consumers coupled with an accessorial liability claim against Mr Hulbert in respect of the Channic contraventions. It was contemplated that a less complicated statement of agreed facts would be formulated upon which the Court could and would rely. The statement of agreed facts was to be supported by written submissions. A discussion took place about possible dates for hearing the matter, preferably over a single day. Mr Collins seemed to embrace those propositions and suggested that the matter would conclude inside one day, on the footing as suggested. 79 Thereafter, the parties attempted to agree upon a statement of facts to be put to the Court. It seems that a document of approximately 123 pages had been formulated on behalf of ASIC setting out all the relevant factual matters. Mr Collins described the document as containing approximately 800 facts based on a pleading containing over 400 paragraphs. Emphasis was placed by ASIC upon the earlier unqualified unequivocal acceptance of the statement of claim with no defence having been filed. 80 Mr Collins explained at the further directions hearing on 4 February 2014 that there were "aspects" of the statement of claim and "aspects" of the proposed agreed statement of facts that were perceived by the respondents to be not "strictly accurate". Mr Collins observed that since agreement had not been reached about the proposed statement of facts, ASIC had proposed, prior to the directions hearing, that the respondents put on a defence: T, p 6, lns 30-33, 4 February 2014. As to the statement of claim, Mr Collins observed that "the vast majority are accepted, some are accepted but with slight nuances or qualifications". Mr Collins also observed that he did not "want it to be said that there's some sort of about-face" because "the vast majority will be accepted": T, p 8, lns 8-9; 17-18. Proposed directions were then discussed for the filing of a defence. The scope of the matters which would then be in issue would be revealed. 81 As things transpired, Mr Collins ceased to act for the respondents. 82 Dr Spence thereafter acted for them. 83 A defence was put on by Dr Spence. It was struck out as being embarrassing in the technical sense with leave given to re-plead in conformity with the Federal Court Rules 2011. An amended defence was then filed. By the defence, Dr Spence pleaded to not only the material facts but each of the individual particulars in the lengthy and complicated statement of claim. Accordingly, the amended defence is also a lengthy and complicated document. 84 By the amended defence a range of matters are admitted by the respondents. Many other matters are denied or the subject of a contention that the matters are not within the knowledge of the respondents. Statements were put on. All of ASIC's witnesses were required for cross-examination by Dr Spence. The proceeding proceeded to trial. 85 It is now necessary to address aspects of the factual matters which are admitted on the pleadings and identify the range of questions now in controversy. In doing so, I will simply recite the relevant matters without attributing each of them to paragraphs of the respective pleadings. PART 3: The position reached by the parties on the face of the pleadings 86 Unless otherwise mentioned, the following matters (relevant to all material times in the proceeding) are admitted and thus not in issue. 87 ASIC has standing to bring the proceeding for the relief it seeks. 88 ANG engaged in the business of selling used motor vehicles. It advertised under the prominent name "SUPER CHEAP" followed by the words "Car Sales" ("Supercheap"). Mr Hulbert was its sole director, sole shareholder and controlling mind. Supercheap operated its used car sales business from at least 16 June 2010 to 20 September 2011 at and from premises at 484 Mulgrave Road, Earlville Cairns (the "first premises") and from 21 September 2011 at and from premises at 132 Spence Street, Parramatta Park, Cairns (the "second premises"). 89 Channic engaged in the business of providing credit for profit. It did so as trustee for the "AHA New Start Finance Trust". Mr Hulbert was the sole director, controlling mind and authorised agent of Channic. The company search shows that Mr Hulbert was Channic's sole shareholder. 90 CBPL was engaged in the business of brokering credit for profit. Mr Hulbert was the sole director, controlling mind and authorised agent of CBPL. The company search shows that he was CBPL's sole shareholder. 91 Channic and CBPL conducted their respective business undertakings at and from the first premises until 20 September 2011 and then at and from the second premises. 92 The usual operation of those three businesses involved used cars being offered for sale or sold to members of the public by Supercheap. The sale of the cars would usually be financed by loans. Supercheap would be the seller and would convey title to the vehicle to the consumer. Channic would provide loans to customers to buy the vehicles. ASIC contends that CBPL would "purport" to broker a loan from Channic to assist a customer to purchase the vehicle. The respondents contend that CBPL "actually" brokered such loans from Channic. ASIC says that CBPL only arranged loans from Channic. The respondents say that CBPL arranged loans with other credit providers and that Supercheap sold cars financed by other lenders. 93 Mr Kevin Humphreys was either an employee of, or contractor to, Supercheap. He was Supercheap's agent. He was also either an employee of, or a contractor to, CBPL. He was CBPL's agent. The respondents deny he was an employee or an agent of, or a contractor to, Channic. 94 Supercheap took out written advertisements by which it said that finance was offered to buyers: with a 20 minute on-site approval; to persons in receipt of Centrelink income; to persons with bad credit histories; and to ex-bankrupts. Supercheap advertised its business by means of a large sign outside its business premises visible to passers-by as set out below (Applicant's Tender Bundle, Vol 1, Tab 4): 95 The respondents deny that the business activities of Supercheap, Channic and CBPL were likely to attract persons who were: unable to obtain or unlikely to seek loans from major banking institutions due to a poor credit history or because they perceived themselves or perceived as having a poor credit history; in need of an inexpensive vehicle and an inexpensive loan; lacking in commercial experience; unlikely to understand or appreciate legal documentation not drafted in simple English; unlikely to be able to evaluate whether the terms of any loan were fair or commercial. 96 On or about 16 June 2010, Channic made an application for registration and was registered as a credit provider under the Transitional Provisions Act. On 13 December 2010, Channic applied for an Australian Credit Licence under the NCCP Act and on 31 January 2011 that licence was granted. Chapter 3 of the NCCP Act applied to Channic, in the period relevant to these proceedings, either as if it was a licensee or because it was a licensee Each loan contract entered into by Channic with each borrower described in the statement of claim (and described at [73] of these reasons) constituted the provision of credit for the purposes of s 5 of the NCCP Act. See also s 3(1) of the National Credit Code. 97 On or about 18 June 2010, CBPL made an application for registration and was registered as a credit assistance provider under the Transitional Provisions Act. On 22 December 2010, CBPL applied for an Australian Credit Licence under the NCCP Act and on 24 February 2011 that licence was granted. Chapter 3 of the NCCP Act applied to CBPL, in the period relevant to these proceedings, either as if it was a licensee or because it was a licensee. 98 As to the "credit broking activities" of CBPL, each buyer of a car with whom CBPL dealt, was a consumer within the meaning of the NCCP Act. CBPL dealt directly with each buyer in the course of or as part of its business. Each "loan contract" in respect of which CBPL provided credit assistance to the borrower was a credit contract within the meaning of s 4 of the National Credit Code. As to the credit providing activities of Channic, each buyer of a car with whom Channic dealt was a consumer within the meaning of the NCCP Act. Channic provided credit by the provision of a loan to the buyer of the car. 99 I propose to now illustrate the position in relation to the first of the consumer buyers of a car, Ms Kingsburra, who engaged with Channic and CBPL, by identifying the pleaded position (admissions and matters in contention) concerning her circumstances and then examine the evidence of Ms Kingsburra and the particular documents immediately relevant to Ms Kingsburra (which, in the main, characterise the method adopted by CBPL and Channic in the conduct of their respective undertakings). I will then examine the evidence of the respondents. Ms Adele Dorothea Kingsburra 100 As to the pleaded position, the following facts are admitted except where otherwise indicated. 101 Ms Kingsburra attended the first business premises (484 Mulgrave Road) on 6 July 2010 for the purpose of purchasing a car for one of her sons, paying a deposit as part of the purchase price and paying the remaining part of the purchase price by instalments. At the first business premises on 6 July 2010, Mr Humphreys for Supercheap, showed Ms Kingsburra a 1997 Hyundai Elantra Sedan. ASIC contends that Mr Humphreys told her that he had used the car, sometimes, for his own personal purposes; it had no problems; and the existing paint damage to it could be fixed cheaply. The respondents say that they have no knowledge of what was said by Mr Humphreys to Ms Kingsburra. 102 ASIC says that Mr Humphreys told Ms Kingsburra that the purchase price was $8,990.00, a deposit of $1,500.00 would be required and if Ms Kingsburra wanted "mag wheels" an extra $200.00 deposit would be required. These matters, however, are admitted by the respondents even though these matters also fall within the knowledge of Mr Humphreys. 103 Ms Kingsburra agreed, with Mr Humphreys, to buy the car for $8,990.00 by paying a deposit of $1,500.00 (plus $200.00 for the mag wheels) with the balance to be paid by instalments. The respondents say the deposit was $1,700.00 for the car and it included mag wheels. 104 On 10 July 2010, Ms Kingsburra returned to the first business premises. ASIC says she paid a deposit of $1,500.00 plus $200.00. The respondents say she paid a deposit of $1,700.00. ASIC says Mr Humphreys told Ms Kingsburra she would have to return to the premises on another day to collect the vehicle. Ms Adele Dorothea Kingsburra and Cash Brokers Pty Ltd 105 ASIC says that on 6 July 2010, Mr Humphreys inquired of Ms Kingsburra as to various aspects of her financial situation. On 6 July 2010, Mr Humphreys substantially completed or filled out a "Credit Application Form" in the name of Ms Kingsburra. ASIC says this was done, by CBPL, by Mr Humphreys. ASIC says that Mr Humphreys "caused" Ms Kingsburra to sign the Credit Application Form. The point of distinction pleaded by the respondents is that they say that the Credit Application Form was "offered" to Ms Kingsburra (by CBPL) "for her signature" and "she signed it". 106 ASIC says that Mr Humphreys advised Ms Kingsburra to obtain a statement from Centrelink showing the amount of her regular Centrelink social security payments so as to support the application for credit for the purchase of the car and advised her to obtain also a letter from her partner stating that he paid her board of $150.00 per fortnight, to further support the credit application. The respondents plead that they have no knowledge of these matters although Mr Hulbert pleads that he believes that the person paying board to Ms Kingsburra was not her partner. 107 ASIC contends that Mr Humphreys told Ms Kingsburra that her weekly repayment instalment would be $120.00; did not advise Ms Kingsburra of any brokerage payable to CBPL or that she was entering into a brokerage agreement with CBPL; did not tell Ms Kingsburra that brokerage payable to CBPL would be added to the amount of the credit which she would be obtaining; and, did not tell Ms Kingsburra that there was a legal entity, CBPL, acting as a broker, separate from the lender, Channic, and the seller of the car, Supercheap. As to each of these matters, the respondents do not admit the facts and say that the matters are not within their knowledge. 108 ASIC says that on 6 July 2010, Mr Humphreys for CBPL prepared a document called a "Preliminary Test" which purported to be a preliminary assessment in accordance with s 115 of the NCCP Act of whether a loan to Ms Kingsburra of $7,290.00 would be unsuitable for her and which purported to analyse the capacity of Ms Kingsburra to repay a loan of $7,290.00. The respondents admit these matters except that they say that the Preliminary Test document is dated 7 July 2010. 109 The respondents also admit that Mr Humphreys for CBPL: did not include any brokerage fee in the amount of the credit assumed by the Preliminary Test; wrote a letter to Channic, on behalf of Ms Kingsburra, applying for a loan of $7,290.00 with weekly repayments of $119.45 (accepted, for the purposes of the admission, as the "Cash Brokers/Kingsburra Proposed Loan"; also referred to later in these reasons as "CB/KPL"); and delivered the Preliminary Test, Credit Application Form and the letter to Channic, to Channic, thereby applying for that loan on behalf of Ms Kingsburra. 110 ASIC says that by doing the things described at [108] and [109] of these reasons, CBPL "suggested" to Ms Kingsburra that she "apply" for a "particular" credit contract with a "particular" credit provider. The respondents say that this matter is not within their knowledge. 111 The respondents, however, admit that: CBPL "assisted" Ms Kingsburra to apply for a particular credit contract (the Cash Brokers/Kingsburra Proposed Loan) with a particular credit provider (Channic) and on 6 July 2010 CBPL provided "credit assistance" to Ms Kingsburra within the meaning of s 8 and s 115 of the NCCP Act. 112 On 13 July 2010, subsequent to providing credit assistance to Ms Kingsburra on 6 July 2010, CBPL, by Mr Humphreys, received from Ms Kingsburra a copy of a Centrelink Statement dated 12 July 2010 and a signed statement from Mr Garry Gilmartin that he paid board each week to Ms Kingsburra of $150.00. 113 ASIC asserts that at no time prior to purporting to make a preliminary assessment, if any, in relation to Ms Kingsburra on 6 July 2010 did CBPL make any or any reasonable inquiries as to Ms Kingsburra's requirements and objectives in relation to the Cash Brokers/Kingsburra Proposed Loan. CBPL, it is said, failed to inquire as to the amount of the loan which Ms Kingsburra required; the interest rate which she required; the length of time over which Ms Kingsburra intended that any credit provided would be repaid; and whether or not Ms Kingsburra required the loan for a purpose of paying brokerage of any kind which would be chargeable on the loan transaction. The respondents do not admit these matters and say that each matter is a fact not within the knowledge of the respondents. 114 ASIC also asserts that at no time prior to purporting to make a preliminary assessment, if any, in relation to Ms Kingsburra on 6 July 2010 did CBPL make any reasonable inquiries as to Ms Kingsburra's financial situation. CBPL, it is said, failed to inquire as to the usual weekly, fortnightly or monthly expenses of Ms Kingsburra; the amount of money which Ms Kingsburra usually had available each week, fortnight or month which might be available for repaying a loan. The respondents do not admit these matters and say that each matter is a fact not within the knowledge of the respondents. CBPL, it is said, also failed to inquire as to Ms Kingsburra's "actual living expenses" but instead applied an amount of $2,925.00 as her monthly expenses in the Preliminary Test document using a "standardised formula", as set out in the Preliminary Test document, of $1,300.00 per month for a de facto or married couple and $325.00 for each of Ms Kingsburra's five dependents. The respondents do not admit these factual matters and say that each of them is not within their knowledge. 115 However, the respondents admit that CBPL "used a standardised formula as particularised". 116 It is also said that at no time prior to 6 July 2010 when purporting to make a preliminary assessment did CBPL take any reasonable steps to verify Ms Kingsburra's financial situation. This matter is denied by the respondents. 117 However, the respondents admit that CBPL could not have undertaken any or any reasonable steps to verify Ms Kingsburra's financial situation as the preparation of the Preliminary Test and the provision of credit assistance to Ms Kingsburra occurred on 6 July 2010 but the Centrelink statement and the statement from Mr Gilmartin were not obtained by CBPL until, at the earliest, 13 July 2010: para 25.3 and para 25.3(a) of the statement of claim and the amended defence. I mention, on this occasion, the paragraph references because it seems to me that Dr Spence was probably seeking to deny a failure by the respondents to take any reasonable steps to verify Ms Kingsburra's financial situation but admit, simply, the facts about CBPL having received the Centrelink Statement and Mr Gilmartin's statement no earlier than 13 July 2010. 118 The respondents deny that CBPL did not otherwise obtain information which would evidence or support (that is to say, verify) the information provided by Ms Kingsburra as to her financial situation. 119 ASIC says that CBPL did not verify Ms Kingsburra's actual living expenses but instead applied an amount of $2,925.00 as her monthly living expenses for the purposes of the Preliminary Test using the standardised formula of $1,300.00 per month for de facto or married couple and $325.00 for each of Ms Kingsburra's five dependents. The respondents deny that CBPL failed to verify Ms Kingsburra's actual living expenses. The respondents admit that CBPL used a standardised formula as alleged by ASIC but say that that use "did not supplant the verification that [CBPL] made in respect of Yeatmans' actual living expenses". I proceed on the basis that the respondents were intending to refer to Ms Kingsburra at this point in their pleading. 120 The respondents deny that CBPL contravened s 117 of the NCCP Act. 121 However, the respondents admit that at the time of the provision by CBPL of credit assistance to Ms Kingsburra, CBPL had not, within 90 days before the day on which the credit assistance was provided, or at all, made any preliminary assessment that was in accordance with s 116(1) of the NCCP Act and that the Preliminary Test did not specify the period it covered. Although there is a misdescription at para 27.1b of the amended defence (which refers to para 27.1a of the statement of claim rather than para 27.1b), it seems clear enough that the respondents also admit that the preliminary test did not contain an assessment of whether the Cash Brokers/Kingsburra Proposed Loan would be unsuitable: para 27.1b, amended defence. 122 There is no misdescription as to para 27.2a and the respondents admit that CBPL had not, within 90 days before the day on which credit assistance was provided, or at all, made any preliminary assessment that "covered the period that was proposed for the entering into the credit contract". They admit that the "period which should have been covered by any preliminary assessment was the period during which it was proposed the credit contract would be entered into". The respondents seem to admit (although there may be another misdescription of para of the statement of claim in the amended defence), that CBPL had not within 90 days before the day on which the credit assistance was provided, or at all, undertaken the inquiries and verification required by s 117 of the NCCP Act. 123 The respondents also admit that CBPL, by providing credit assistance to Ms Kingsburra, contravened s 115(1) of the NCCP Act. 124 ASIC says that the Cash Brokers/Kingsburra Proposed Loan was unsuitable for Ms Kingsburra because at the time CBPL provided credit assistance it was likely that Ms Kingsburra would be unable to comply with her financial obligations under the loan or would only be able to comply with those obligations with substantial hardship; Ms Kingsburra's accounts were regularly overdrawn; the accounts were rarely in credit; and in the ordinary course, any social security payments paid into Ms Kingsburra's account were withdrawn on or about the day on which the money was deposited. All of these matters are denied by the respondents. The respondents also deny that Ms Kingsburra had a number of recurring expenses such as repayments of cash advances made to her by "Cash Converters". The respondents deny that Ms Kingsburra had a number of recurring expenses but admit that Ms Kingsburra was making payments on a loan previously provided by Cash Converters. 125 The respondents admit that in purporting to assess the unsuitability of the Cash Brokers/Kingsburra Proposed Loan, CBPL failed to take into account the cost per month of the motor vehicle insurance that Ms Kingsburra would be required to obtain pursuant to any loan agreement she entered into with Channic and also failed to take into account an estimate of the additional costs Ms Kingsburra would incur due to owning and maintaining a motor vehicle. 126 The respondents deny that the CB/KPL did not meet Ms Kingsburra's requirements and objectives. They deny that CBPL failed to make reasonable inquiries about Ms Kingsburra's requirements and objectives in relation to any finance she would obtain to assist in the completion of the purchase of the car and they deny that they "could not have been aware of" Ms Kingsburra's requirements and objectives for that purpose. They deny that the CB/KPL ought to have been assessed as "unsuitable" for Ms Kingsburra and deny that in failing to do so they contravened s 118(1) of the NCCP Act. They deny that CBPL contravened s 123(1) of the NCCP Act by suggesting that Ms Kingsburra apply for the CB/KPL and by assisting Ms Kingsburra to apply for that loan. Ms Adele Dorothea Kingsburra and Channic 127 The respondents admit that on 6 July 2010, Channic prepared a document called a "Credit Suitability Assessment" ("CSA") which: stated that it was made on 6 July 2010; was purportedly made in accordance with ss 128 and 129 of the NCCP Act; purported to assess the suitability of a loan to Ms Kingsburra from Channic in an amount of $8,301.50 for a period of 110 weeks at an interest rate of 48% (called the "Kingsburra Proposed Loan"); purported to assess that a loan in such terms was not unsuitable for Ms Kingsburra and that it met her needs and objectives during the period of the loan; and which stated that the period covered by the assessment was from 6 July 2010 to 6 August 2010. 128 The respondents admit that Ms Kingsburra returned to the first premises on 13 July 2010 where she completed a contract to purchase the car with the assistance of credit from Channic. 129 The respondents admit that on 13 July 2010, Ms Kingsburra entered into a loan agreement (the "Kingsburra Loan") with Channic in writing comprising a document entitled Consumer Loan Contract and Mortgage No: 5030 (also called in these reasons the "Credit Contract"). 130 The respondents admit that pursuant to the Kingsburra Loan, Channic agreed to lend and Ms Kingsburra agreed to borrow an amount of $8,301.50 at an annual interest rate of 48% over a loan period of 110 weeks with amounts payable each week of $119.45 and a final payment of $114.30 with the first repayment to be made on 19 July 2010 and that on settlement of the loan, a sum of $990.00 would be paid to CBPL as brokerage and the sum of $7,290.00 would be paid to Supercheap for the purchase of the 1997 Hyundai Elantra motor vehicle. 131 ASIC says that at no time prior to preparing the Kingsburra CSA on 6 July 2010 (or at all) did Channic make any or any reasonable inquiries as to Ms Kingsburra's requirements and objectives in and for the proposed Kingsburra Loan. Channic failed, it is said, to inquire as to the amount of the loan Ms Kingsburra required; the interest rate she required; the length of time over which she intended that any credit provided would be repaid; and whether or not Ms Kingsburra required the loan for a purpose of paying brokerage of any kind which would be a charge on the loan transaction. As to all of these matters, the respondents do not admit the facts and say that each fact is not within the knowledge of the respondents and they further say, as to each fact, that "Kevin Humphreys prepared the Credit Suitability Assessment in respect of Ms Kingsburra". 132 As to the question of inquiries, ASIC also says that at no time prior to preparing the Kingsburra CSA on 6 July 2010 or otherwise did Channic make any reasonable inquiries as to Ms Kingsburra's financial situation. Channic, it is said, failed to inquire as to: Ms Kingsburra's weekly, fortnightly or monthly expenses; the amount of money which Ms Kingsburra usually had available at the end of each week, fortnight or month which might be available for repaying a loan; Ms Kingsburra's actual living expenses and instead relied upon the Preliminary Test prepared by CBPL which applied an amount of monthly expenses of $2,925.00 based on the standardised formula contained in the Preliminary Test as earlier mentioned. As to each of these matters the respondents again say that these matters of fact are not within their knowledge and that Mr Humphreys prepared the Kingsburra CSA. As to the matter of applying the monthly amount of $2,925.00 based on the formula rather than conducting an inquiry into Ms Kingsburra's actual living expenses, the respondents say that Mr Humphreys prepared the Kingsburra CSA and thus any failure to inquire into actual living expenses is not within the knowledge of the respondents but, nevertheless, the respondents admit that Channic "used a standardised formula [as alleged]". 133 As to the question of verification, ASIC says that at no time prior to preparing the Kingsburra CSA on 6 July 2010 or at all did Channic take any reasonable steps to verify Ms Kingsburra's financial situation. Channic, it is said, first, could not have undertaken any or any reasonable steps to verify Ms Kingsburra's financial situation as the CSA was completed on 6 July 2010 but the Centrelink Statement and the statement from Mr Gilmartin were not obtained by Channic until 13 July 2010. Second, Channic did not otherwise obtain information or material which would evidence or support the information provided by Ms Kingsburra as to her financial situation. Third, Channic did not verify Ms Kingsburra's actual living expenses but instead relied on the Preliminary Test prepared by CBPL which applied a standardised formula as earlier described. 134 As to the matters at [133], the respondents deny that Channic failed to take any reasonable steps to verify Ms Kingsburra's financial situation. They deny that the CSA was completed on 6 July 2010 and say that it was completed on 7 July 2010. They do not admit that the Centrelink Statement and Mr Gilmartin's statement were not obtained by Channic until 13 July 2010 and add "that that is not a matter of fact within the knowledge of the respondents". They deny that Channic did not otherwise obtain information in verification of Ms Kingsburra's financial situation. They do not admit that Channic failed to verify Ms Kingsburra's actual living expenses although that is said to be a matter not within their knowledge because Mr Humphreys prepared the Kingsburra CSA. The respondents admit, however, that Channic "had reference to a standardised formula", as particularised, but say that reference to the formula "was not such that it supplanted the verification undertaken by [Channic]. 135 The respondents deny that Channic contravened s 130(1) of the NCCP Act. 136 The respondents admit that at the time of provision by Channic of credit to Ms Kingsburra, Channic had not, within 90 days before the day on which the credit was provided, or at all, undertaken the inquiries and verification required by s 130 of the NCCP Act. The respondents also admit that Channic, by providing credit to Ms Kingsburra, contravened s 128 of the NCCP Act. 137 ASIC says that Ms Kingsburra was a person who would be unable to comply with her financial obligations under the Kingsburra Proposed Loan or would only be able to comply with those obligations with substantial hardship for the reasons described in para 40.1 of the statement of claim (which repeats the matters at para 29 of the statement of claim) which are those matters described at [124] of these reasons. 138 The respondents deny that the Kingsburra Proposed Loan did not meet Ms Kingsburra's requirements and objectives. They deny that Channic had not made reasonable inquiries about Ms Kingsburra's requirements and objectives in relation to any finance obtained by her from Channic to assist in the completion of the purchase of the car. They deny that they could not have been aware of Ms Kingsburra's requirements and objectives for the finance. They deny that the requirements and objectives of Ms Kingsburra for the loan were that the loan be for an amount of $7,290.00 representing the difference between the cost of the car at $8,990.00 and the amount of $1,700.00 which was paid as a deposit. They deny that the requirements and objectives of Ms Kingsburra for the loan did not include any amount to be used to pay brokerage in obtaining the loan from Channic. They deny that the Kingsburra loan was for $8,301.50 in circumstances where Ms Kingsburra only required a loan of $7,290.00. They deny that Ms Kingsburra did not require or seek an amount of $990.00 to be included in the loan for brokerage. They deny that Ms Kingsburra was unaware that the loan amount included brokerage of $990.00. Although there is a misdescription at para 40.2(e) of the amended defence (which refers to 40.2(d) of the statement of claim rather than 40.2(e)) it seems clear that the respondents also deny para 40.2(e) of the statement of claim. 139 As to the notion that Channic, in making its assessment, relied upon the Preliminary Test prepared by CBPL and in doing so took into account a formula or standardised amount "as representing" Ms Kingsburra's actual living costs and expenses resulting in an applied amount of $2,925.00 comprising $1,300.00 per month for a de facto or married couple and an additional $325.00 per month for each of Ms Kingsburra's five dependents, the respondents say this. They deny that matter. However they then admit that CBPL made reference to a standardised formula as asserted but say that the use of that formula did not result in the Preliminary Test "being not referrable to the actual living costs and expenses of Ms Kingsburra". As to the numbers, the respondents deny the formulation of the numbers pleaded against them and say that the formula used was based on Ms Kingsburra being a single person and not in a de facto relationship and they say that the relevant numbers derived from the formula were $2,575.00 being $950.00 per month for a single person and $325.00 for each dependent. 140 The respondents deny that they failed to take into account only the information which satisfied integers (a) and (b) of s 131(4) of the NCCP Act. 141 The respondents deny that Channic should have assessed the Kingsburra Proposed Loan as being unsuitable for Ms Kingsburra as a loan which would not have met Ms Kingsburra's requirements and objectives. They deny that, in failing to assess the loan as unsuitable, they contravened s 131(1) of the NCCP Act. They deny that the loan was unsuitable. They deny that Channic contravened s 133(1) of the NCCP Act by entering into the Kingsburra Loan. The unconscionable conduct aspects of the matter 142 The respondents deny that the provision of the loan to Ms Kingsburra by Channic was the provision of a "financial service" as that expression is used in s 12BAB of the ASIC Act. 143 The respondents admit that the Kingsburra Loan was entered into by Channic in the course of trade and commerce and they admit that Ms Kingsburra was desirous of acquiring a car and had, as her only source of income, the receipt of social security payments. 144 The respondents do not admit and have no knowledge of whether Ms Kingsburra had the care of eight children or was a person of limited education, as alleged. 145 They admit that Ms Kingsburra was a resident of the Yarrabah Aboriginal Community. 146 They have no knowledge of whether, as alleged, Ms Kingsburra had very limited ability to negotiate and to protect her own interests when dealing with people outside of her community. 147 As to the contention that Ms Kingsburra had limited knowledge of, or experience in relation to, financial transactions, the respondents deny that matter and say that Ms Kingsburra had some experience in financial transactions as she had previously obtained personal loans from a credit provider, Cash Converters. 148 As to whether Ms Kingsburra was not aware of the market values of used motor vehicles, as alleged, the respondents say that that is not a matter of fact within their knowledge. As to whether Ms Kingsburra was unable to ascertain for herself whether or not a motor vehicle was or was not in a reasonable condition, the respondents say that that is not a matter of fact within their knowledge. Two other matters are asserted by ASIC to which the respondents have pleaded the same response. The first is that Ms Kingsburra was not used to reading and understanding transactional documents relating to loans and purchases and second, she would require advice and explanations to be given in relation to the effect of commercial documents. 149 The respondents deny that Channic, by Mr Humphreys and/or Mr Hulbert, was aware of or believed that persons in the position of Ms Kingsburra were unlikely to be able to acquire a loan from any mainstream bank, building society or other similar financial institutions. The respondents admit that Channic, by Mr Humphreys or Mr Hulbert, held expertise in the selling of motor vehicles. The respondents deny that that they were aware that the vehicle being sold to Ms Kingsburra was worth substantially less than the amount which Ms Kingsburra had agreed to pay for it. 150 The respondents admit that the vehicle was sold by Supercheap to Ms Kingsburra for an amount of $8,990.00 in circumstances where Supercheap had acquired the vehicle for $500.00 and had expended $1,091.00 on reconditioning it, representing total expenditure by Supercheap of $1,591.00. Although the respondents admit those matters, they say that the overheads per vehicle sold by Supercheap were between $3,000.00 and $4,000.00. 151 The respondents deny that Channic was in a substantially superior bargaining position to Ms Kingsburra in the negotiation of the sale and purchase of motor vehicles and the financing of the purchase of a motor vehicle. 152 The respondents admit that on 13 July 2010, at the time when the Kingsburra loan was entered into, Mr Hulbert placed a 22 page document (as earlier described), the Kingsburra Loan Contract, in front of Ms Kingsburra. As to the notion that Mr Hulbert turned the pages of the document without giving Ms Kingsburra any proper opportunity to read any of the pages, Mr Hulbert admits that he turned the pages of the loan contract but denies that Ms Kingsburra was not given any proper opportunity to read any of the pages. Mr Hulbert further says that prior to turning the pages, he told Ms Kingsburra that she should read the loan contract and that she could read the loan contract at the premises (the first premises) or take the loan contract away from the premises to read. Mr Hulbert says that Ms Kingsburra declined, in the exercise of her free will, to read the document at the premises or elsewhere. 153 As to the notion that Mr Hulbert instructed Ms Kingsburra to initial the foot of each page of the contract (which she did), the respondents deny that any such instruction was given but say that the loan contract was offered to Ms Kingsburra (although at this point of the pleading there is a mistaken reference to Ms Harris) for her to initial each page and they admit that she did initial each page. 154 As to the notion that Mr Hulbert instructed Ms Kingsburra as to where to place her signature on pages 8, 9 and 22 (which she did), the respondents deny any such instruction and say that the loan contract was offered to Ms Kingsburra for her signature at those pages and she signed on those pages. 155 As to the notion that Mr Hulbert did not explain the document to Ms Kingsburra or did not fully explain it to her, the respondents deny that matter and say that Mr Hulbert referred Ms Kingsburra to the following matters contained within the loan contract: the amount of credit; the annual percentage rate; the amount of interest payable; the number of repayments; the amounts of repayments; the date of the first and last repayments; the frequency of the payments; the total amount of repayments; the comparison interest rate; the term of the loan; the amount of the brokerage fee; the amount of the "REVS" encumbrance fee; the amount of direct debit fees; the missed payment fee; the default notice fee; the debt recovery fee; the details as to the vehicle the subject of the loan; the "Important Note" to borrowers and the two "boxed" warnings to the borrower, immediately above the location for the borrowers and witness signature. Mr Hulbert pleads that he provided Ms Kingsburra with a summary of the key provisions of the loan contract and told her that if there was anything in the contract which she did not understand, it would be explained to her. 156 As to the notion that Mr Hulbert did not advise Ms Kingsburra to read the document or to seek legal advice in relation to it, the respondents deny that matter and Mr Hulbert pleads, again, that he advised Ms Kingsburra to read the loan contract and that he said she could read it at the premises or take it away to read but that Ms Kingsburra elected not to read the document at the premises or elsewhere. Mr Hulbert says that he told Ms Kingsburra that she should seek legal advice about the contents of the loan contract but that she declined to obtain such legal advice, in the exercise of her free will. 157 As to the notion that Mr Hulbert did not explain the interest rate of 48% per annum, did not identify the amount being borrowed, did not identify the total amount that would be repaid and did not identify an amount representing brokerage forming part of the loan, all such matters are denied. 158 ASIC contends that the terms of the loan were harsh and unconscionable having regard to these considerations: the contended circumstances in which it was entered; the amount borrowed was more than the amount which Ms Kingsburra sought or required in order to purchase the Hyundai Elantra; all Ms Kingsburra wanted to borrow to complete the purchase of the car was $7,290.00; the interest rate was 48% per annum "despite the fact that Ms Kingsburra was paying above the market value for the [car]"; the total amount of the repayments under the agreement was $13,134.35; Ms Kingsburra agreed or undertook that should she default in making the loan repayments she would consent to the car being repossessed and would remain liable for any shortfall in the loan repayments; Channic knew that the loan related to the purchase of a car by Ms Kingsburra which was worth substantially less than the amount she had agreed to pay for it (and that was so because: the sale price of the car was substantially more than the price of a similar car of that kind generally available on the market; the car had a number of defects including cracked wheels which were required to be replaced at a cost of $180.00 each; the front passenger door did not open and, once repaired, the window winder was broken; the car had paint damage for which Ms Kingsburra received a repair quote of $800.00; and the spare tyre of the car was flat). 159 As to these various matters, the respondents admit that the interest rate was 48% per annum and that total repayments under the agreement amounted to $13,134.35. They admit that Ms Kingsburra undertook to consent to repossession of the vehicle should she default and that she would remain liable for any shortfall in loan repayments. They say that the vehicle was security for the loan and that such a term is a standard term in many loan contracts relating to the purchase of second-hand motor vehicles. 160 They say that the car was sold at market value for such a vehicle having regard to the second-hand vehicle market in the Cairns area. They deny that the price was substantially higher than a comparative similar vehicle. As to the first two defects described earlier, the respondents say that these are matters of fact not within the knowledge of the respondents but in any event the defect could have been repaired under the warranty if the defect occurred during the warranty period. As to the paint damage, the respondents admit that the car had "some paintwork which was faded" but say that otherwise the factual matter is not within the knowledge of the respondents. The respondents assert the same response to the matter of the spare tyre being flat but say that the defect would have been repaired under the warranty at no cost to Ms Kingsburra. 161 ASIC says that Channic, by entering into the loan contract with Ms Kingsburra, took advantage of her vulnerability in relation to the transaction. 162 The respondents deny that by entering into the Kingsburra loan, Channic engaged in unconscionable conduct within the meaning of s 12CB of the ASIC Act. The matter of whether the Channic Loan Contract is an unjust contract under s 76 of the National Credit Code 163 ASIC says that the Channic loan to Ms Kingsburra was an unjust contract within the meaning of s 76 of the National Credit Code for a number of reasons. Having regard to the way I have broken up these paragraphs, I will attribute a principal paragraph number to each set of contentions. 164 First, Ms Kingsburra had substantially less bargaining power than Channic as she had very little experience with car finance and much less experience than Mr Hulbert on behalf of Channic: 53.1. 165 Second, her income was derived from Centrelink social security payments and she had few other options for obtaining finance to purchase a vehicle: 53.1. 166 Third, she suffered from vulnerabilities (in terms of the factual matters described at [143] to [148] of these reasons in addressing the amended defence of the respondents) whereas Channic had the benefit of the advantage of being familiar with transactions in relation to the purchase of cars and related financial lending transactions: 53.1. 167 Fourth, the terms of the loan to Ms Kingsburra and the conduct of Channic were "not justified in light of the risks undertaken by Channic". That is said to follow because the risks undertaken by Channic were "minimal" having regard to four factors and they are: Supercheap bought the car for $500.00 and expended $1,091.00 reconditioning it; Ms Kingsburra had paid Supercheap a deposit of $1,700.00; of the loan to Ms Kingsburra of $8,301.50, $8,280.00 was disbursed to Supercheap and CBPL; and, Supercheap and CBPL were owned and controlled by Mr Hulbert, as was Channic: 53.2. 168 As to these four matters, the respondents deny that the Channic loan was an unjust contract. They deny that Ms Kingsburra had substantially less bargaining power than Channic and say that Ms Kingsburra voluntarily and freely entered into the loan contract and that she had an opportunity to buy a vehicle elsewhere, to take out a loan elsewhere and to seek legal advice about the terms of the contract. They admit that Ms Kingsburra had "much less experience with car finance" than Mr Hulbert but do not admit that Ms Kingsburra had "very little experience with car finance". The respondents admit that Ms Kingsburra's only source of income was her Centrelink social security payments but say that Ms Kingsburra had other options for obtaining finance including four other "non-mainstream" credit providers in the Cairns area. 169 As to the allegation that the Channic loan was not justified having regard to the risks undertaken by Channic, the respondents deny that matter and repeat that although they admit the financial statistics, they say that Supercheap's overheads were between $3,000.00 and $4,000.00 per vehicle. As to the amount of the loan, the respondents admit that out of a loan of $8,301.50, $8,280.00 was disbursed to Supercheap and CBPL but deny that those matters demonstrate that Channic's risks were minimal. As to the control by Mr Hulbert, the respondents admit that Supercheap, CBPL and Channic were owned and controlled by Mr Hulbert but say that those facts are not probative of Channic's risk being minimal. 170 Fifth, ASIC also says that the Channic loan to Ms Kingsburra was an unjust contract because the interest rate of 48% per annum was not reasonably necessary for the protection of Channic's legitimate interests and that an interest rate of 48% was unreasonably high: 53.3. The respondents deny those matters. 171 Sixth, ASIC also says that the Channic loan contract to Ms Kingsburra was an unjust contract because the combined effect of the price of the car (above market value) and the interest rate of 48% per annum were not justified in light of the risk taken by Channic and were not necessary to protect Channic's legitimate interests. Moreover, Channic knew that the value of the car sold to Ms Kingsburra was above market value as the sale price was substantially more than a similar car of that kind generally available on the market and the car had a number of defects which rendered its value less than the market value of a car of that type and age: 53.4. All of these matters are denied by the respondents. 172 Seventh, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because Ms Kingsburra's undertaking that upon default she would consent to repossession of the car while remaining liable for any shortfall in loan repayments was not reasonably necessary for the protection of Channic's interests in circumstances where Channic knew that the loan related to the purchase of a car by Ms Kingsburra which was worth substantially less than the amount of the loan: 53.5. The respondents say, again, that the overheads per Supercheap vehicle were between $3,000.00 and $4,000.00 per vehicle and that the vehicle in question was not repossessed by Channic and the loan was written off by Channic on 27 June 2013. 173 Eighth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because at the time Channic entered into the Kingsburra Loan, its provisions were not the subject of negotiation between Ms Kingsburra and Channic: 53.6. The respondents admit the factual matter (but not the conclusion) and say that Ms Kingsburra was able to exercise "her free choice as to whether to negotiate the terms of the loan, and to enter the loan or not". 174 Ninth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because it was not reasonably practicable for Ms Kingsburra to negotiate for the alteration of the terms or rejection of any of the provisions of the loan contract: 53.7. The respondents deny this matter. 175 Tenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because the loan contract was in a form that was not readily understandable by Ms Kingsburra because it was 22 pages in length and written in complex legal style: 53.8. The respondents deny this matter although they admit that the contract was 22 pages in length. 176 Eleventh, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because Channic failed to explain accurately or at all the provisions of the loan document to Ms Kingsburra. ASIC says that Channic failed to explain that: Ms Kingsburra was borrowing an amount of $990.00 to be paid to CBPL; the existence of CBPL; that CBPL was providing a brokerage service or that CBPL and Channic were owned by Mr Hulbert; the interest rate was 48% per annum which was, or was close to, the maximum rate allowable under legislation: 53.9. The respondents deny these matters except to say that Mr Hulbert admits he did not explain that the interest rate of 48% was close to the maximum rate allowable under legislation. 177 Twelfth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because Ms Kingsburra did not understand the provisions of the loan contract or their effect. ASIC says that that follows because of the earlier matters taken together with the contention that Ms Kingsburra was not aware that there was a brokerage fee of $990.00 to be paid to CBPL included in the amount of credit advanced to her or that the interest rate was 48% per annum and, she was not aware, that the total repayments would be $13,134.35 or aware that those repayments would be in addition to the deposit she had already paid of $1,700.00: 53.10. The respondents deny these matters. 178 Thirteenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because the loan to Ms Kingsburra included an amount of $990.00 payable to CBPL upon disbursement of the funds in circumstances where Ms Kingsburra was not informed of the service performed by or the fee charged by CBPL: 53.11. 179 Fourteenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because Ms Kingsburra did not obtain independent legal advice prior to entering into the loan and Channic did not give her an opportunity to do so. ASIC says this result follows having regard to the earlier matters and the circumstance that Ms Kingsburra, at page 9 of the document, signed a statement to the effect that she had had the opportunity to obtain legal advice but had chosen not to do so, in circumstances where Ms Kingsburra was not aware of, and therefore did not understand, the implications of the statement at page 9 of the document: 53.12. The respondents admit that Ms Kingsburra did not obtain independent legal advice prior to entering into the loan contract but do not admit that she was not given a real opportunity to do so. Mr Hulbert says that he told Ms Kingsburra that she could take the loan contract away and seek legal advice about it but she chose not to seek legal advice and acknowledged that she did not wish to seek legal advice. They admit that Ms Kingsburra signed the statement at page 9 of the document. 180 Fifteenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because Channic engaged in unfair tactics in relation to Ms Kingsburra in that the brokerage fee was not orally disclosed to Ms Kingsburra and nor was it disclosed to her in writing until it was included in a loan disbursement at page 2 of the 22 page document Ms Kingsburra signed in the factual circumstances contended for by ASIC outlined earlier (and in the context of the amended defence put on by the respondents): 53.13. As to these matters the respondents admit that the brokerage fee was not disclosed to Ms Kingsburra in writing until it was included as a loan disbursement at page 2 of the 22 page document put before Ms Kingsburra to be signed. The respondents say that Ms Kingsburra was orally told by Mr Hulbert of the existence of the brokerage fee in the course of Mr Hulbert explaining the loan contract to Ms Kingsburra. 181 Sixteenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because at the time the loan was entered into with Ms Kingsburra, Channic knew or could have ascertained by reasonable inquiry that Ms Kingsburra could not pay in accordance with its terms, or could not pay without substantial hardship: 53.14. The respondents deny that matter but admit that Ms Kingsburra's accounts were regularly overdrawn; that Ms Kingsburra's accounts were rarely in credit; that in the ordinary course, any social security payments which were paid into Ms Kingsburra's account were withdrawn on or about the day on which the money was deposited; and Ms Kingsburra had a number of recurring expenses such as cash advances from Cash Converters. 182 The respondents deny that it was unlikely that Ms Kingsburra would be able to make the repayments under the Channic loan to her and, as to that, they say that Ms Kingsburra in fact made a total of $13,427.00 in payments in respect of the loan contract. 183 Seventeenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because the bargain between Channic and Ms Kingsburra was unjust because to Channic's knowledge the value of the car was substantially less than the amount of the loan (with the same particulars repeated); the interest rate was unreasonably high; and the brokerage fee of $990.00 was unreasonably high: 53.15. The respondents deny these matters. 184 Nineteenth, ASIC says that the Channic loan to Ms Kingsburra was an unjust contract because the loan has not been discharged or otherwise come to an end: 53.16. As to this matter the respondents deny the contention and say that Mr Hulbert did not seek to repossess the vehicle and "wrote the loan off as a bad debt". 185 ASIC says that the loan to Ms Kingsburra should be reopened by the Court under s 76 of the National Credit Code as an unjust contract. The respondents oppose reopening the contract and say that the vehicle was not repossessed and was retained by Ms Kingsburra. PART 4: the questions to be addressed so far as the nccp act is concerned 186 The questions are these, so far as CBPL is concerned: 1. Did CBPL provide credit assistance to the relevant borrower, on a day, by suggesting that the borrower apply, or assisting the borrower to apply, to Channic for a particular credit contract? 2. If so, did CBPL within 90 days of that day make a preliminary assessment that purports to comply with s 115(1)? 3. If so, does it specify, as required by s 116(1)(a) the period the assessment covers? 4. Does the preliminary assessment, if made, assess, as required by s 116(1)(b) whether the credit contract with Channic will be unsuitable for the consumer if he or she enters into the credit contract in the period of the assessment? 5. If no to either 3 or 4, CBPL fails to comply with s 115(1)(c)(i). 6. If a preliminary assessment is made, is it likely, at the time of the preliminary assessment, that the consumer will be unable to comply with his or her financial obligations under the contract if the credit contract is entered into with Channic in the period proposed for it to be entered? 7. If the consumer will be able to comply with those obligations, is it likely that such compliance could only be achieved by the consumer with substantial hardship? 8. Is it likely, at the time of the preliminary assessment, that the contract with Channic will not meet the consumer's requirements or objectives if the contract is entered into with Channic in the period proposed for it to be entered? 9. If yes to any of 6, 7 or 8, the credit contract will be unsuitable by reason of s 118(2). If unsuitable by reason of s 118(2), CBPL must assess, by reason of s 118(1), the Channic credit contract as unsuitable for the consumer, in making the assessment required by s 115(1)(c)(i) and s 116(1)(b). 10. Also, does the preliminary assessment cover, as required by s 115(1)(c)(ii), the period proposed for the entering of the contract? 11. Did CBPL make reasonable inquiries as required by s 115(1)(d) and s 117(1)(a) about the consumer's requirements and objectives concerning a contract with Channic? 12. Did CBPL make reasonable inquiries as required by s 115(1)(d) and s 117(1)(b) about the consumer's financial situation? 13. Did CBPL take reasonable steps to verify the consumer's financial situation as required by s 115(1)(d) and s 117(1)(c)? 14. If no to any of 2, 3, 4, 10, 11 12 or 13 (or yes to any of 6, 7 or 8), CBPL fails to satisfy s 115(1)(c) or (d) and must not provide credit assistance to the consumer by suggesting or assisting him or her to apply to Channic for the particular credit contract: s 115(1). 15. Apart from the questions arising out of the operation of s 115 going to the preliminary assessment, is it likely, at the time CBPL provides credit assistance to the consumer, that he or she will be unable to comply with his or her financial obligations under the Channic contract if the contract is entered into in the period proposed for it to be entered? 16. As to 15, if it is not likely that the consumer will be unable to comply with those obligations, is it likely that the consumer could only comply with such obligations with substantial hardship? 17. In any event, is it likely, at the time CBPL provides credit assistance to the consumer, that the credit contract will not meet the consumer's requirements or objectives, if the contract is entered into in the period proposed for it to be entered? 18. If yes to 15, 16 or 17, the credit contract will be unsuitable for the consumer by reason of s 123(2). 19. If unsuitable by reason of s 123(2), CBPL must not provide credit assistance to the consumer by suggesting that the consumer apply, or by assisting the consumer to apply for the particular credit contract with Channic: s 123(1). 20. Did CBPL, at the same time as providing credit assistance to the consumer, give the consumer a credit proposal disclosure document in accordance with s 121(2)? 187 The questions so far as Channic is concerned are these. 1. It is uncontroversial that Channic entered into a credit contract with the consumers described at [73] of these reasons. 2. Did Channic, within 90 days of the day of entry into the credit contract (the credit day) make an assessment that purports to comply with s 128(c)? 3. If so, does the assessment specify the period the assessment covers, as required by s 129(a)? 4. If Channic has made an assessment, does it assess whether the contract will be unsuitable for the consumer if the contract is entered into in the period the assessment covers, as required by s 129(b)? 5. Is it likely, at the time of the assessment required by s 128(c)(i) and s 129(b), that the consumer will be unable to comply with the consumer's financial obligations under the contract if the credit contract is entered into in the period covered by the assessment? 6. As to 5, if it is not likely that the consumer will be unable to comply with those obligations, is it likely that the consumer could only comply with those obligations with substantial hardship? 7. Is it likely, at the time of the assessment required by s 128(c)(i) and s 129(b), that the credit contract will not meet the consumer's requirements or objectives if the credit contract is entered into in the period covered by the assessment? 8. If the answer to 5, 6 or 7 is yes, Channic must assess that the credit contract will be unsuitable for the consumer by reason of s 131(1). 9. Also, does the assessment cover the period in which the credit day occurs, which for present purposes is the date of entry into the Channic contract: s 128(c)(ii)? 10. Has Channic, before making its assessment, made reasonable inquiries about the consumer's requirements and objectives in relation to the credit contract: s 128(d) and s 130(1)(a)? 11. Has Channic, before making its assessment, made reasonable inquiries about the consumer's financial situation: s 128(d) and s 130(1)(b)? 12. Has Channic, before making its assessment, taken reasonable steps to verify the consumer's financial situation: s 128(d) and s 130(1)(c)? 13. If the assessment does not cover the period in which the credit day occurs, or if Channic has failed to do the things contemplated by 9, 10 and 11, Channic has failed to comply with s 128(d). 14. In the event that Channic fails to comply with s 128(c) or (d), it must not enter into a credit contract with a consumer who will be the debtor under the contract: s 128(a). 15. Apart from any question concerning the making of an assessment as required by s 128, is it likely, at the time the credit contract is entered into, that the consumer will be unable to comply with his or her financial obligations under the contract: s 133(2)(a)? 16. As to 15, if it is not likely that the consumer will be unable to comply with those obligations, is it likely that the consumer could only comply with those obligations with substantial hardship: s 133(2)(a)? 17. Is it likely, at the time the credit contract is entered into, that the credit contract does not meet the consumer's requirements or objectives: s 133(2)(b). 18. If the contract is unsuitable by reason of s 133(2), Channic must not enter into the credit contract with a consumer who will be the debtor under the contract: s 133(1). PART 5: THE ADMISSIONS 188 In relation to the case made against them concerning each of the consumers, the respondents have made a number of admissions. Many other factual matters are contested. The admissions in relation to Ms Kingsburra have already been noted. I propose, however, to now note the admissions made by the respondents (drawn from the amended defence) in respect of the claims made against them concerning each consumer. I will also note the relevant paragraphs of the pleading. As to Ms Kingsburra 189 The respondents admit that CBPL provided credit assistance to her for the purposes of ss 8 and 115 of the NCCP Act: para 23. 190 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 27.1. 191 They admit that no inquiries and verification as required by s 117 of the NCCP Act was undertaken by CBPL: para 27.3. Although there is a misdescription at para 27.3 of the amended defence (which refers to 27.2(a) of the statement of claim rather than 27.3) it seems clear that the respondents also admit para 27.3 of the statement of claim. 192 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 28. 193 They admit that Channic failed to undertake reasonable inquiries and verification as required by s 130 of the NCCP Act: para 38. 194 They admit that Channic failed to discharge its obligation to assess unsuitability for the purpose of s 128 of the NCCP Act: para 39. 195 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions contravened by Channic: para 414.4. 196 All other matters are in issue. As to Ms Prunella Kathleen Harris 197 The respondents admit that CBPL provided credit assistance to her for the purposes of ss 8 and 115 of the NCCP Act: para 59. 198 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 63. 199 All other matters are in issue. As to Mr Vance Henry Gordon and Ms May Estell Stanley 200 The respondents admit that CBPL provided credit assistance to them for the purposes of ss 8 and 115 of the NCCP Act: para 95. 201 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 98.1. 202 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 99. 203 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions contravened by Channic: para 414.4. 204 All other matters are in issue. As to Ms Rhonda Lorraine Brim 205 The respondents admit that CBPL provided credit assistance to her for the purposes of ss 8 and 115 of the NCCP Act: para 133. Although there is a misdescription at para 133 of the amended defence (which refers to 132.2(b) of the statement of claim rather than 133) it seems clear that the respondents also admit para 133 of the statement of claim. 206 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 136.1. 207 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 137. 208 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions of the NCCP Act contravened by Channic: para 414.4. 209 All other matters are in issue. As to Ms Kerryn Gerthel Smith 210 The respondents admit that CBPL provided credit assistance to her for the purposes of ss 8 and 115 of the NCCP Act: para 170. 211 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 179.1. 212 Because the respondents failed to plead to para 179.3 of the statement of claim, they are taken to have admitted that no inquiries or verification as required by s 117 of the NCCP Act was undertaken by CBPL: para 179.3. 213 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 180. 214 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions of the NCCP Act contravened by Channic: para 414.4. 215 All other matters are in issue. As to Ms Joan Cecily Noble and Mr William Damien Noble 216 The respondents admit that CBPL provided credit assistance to them for the purposes of ss 8 and 115 of the NCCP Act: para 214. 217 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 223.1. They admit that no inquiries and verification as required by s 117 of the NCCP Act was undertaken by CBPL: para 223.3. 218 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 224. 219 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions of the NCCP Act contravened by Channic: para 414.4. 220 All other matters are in issue. As to Ms Muriel Grace Dabah and Ms Estelle Harris 221 The respondents admit that CBPL provided credit assistance to them for the purposes of ss 8 and 115 of the NCCP Act: para 259. 222 They admit that no inquiries and verification as required by s 117 of the NCCP Act was undertaken by CBPL: para 261. They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 262.1(a). 223 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 263. 224 They admit that Channic failed to undertake reasonable inquiries and verification as required by s 130 of the NCCP Act: para 273.1. 225 They admit that Channic failed to discharge its obligation to assess unsuitability for the purpose of s 128 of the NCCP Act: para 274. 226 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions contravened by Channic: para 414.4. 227 All other matters are in issue. As to Ms Charlotte Mudu and Mr Aaron Elliott 228 The respondents admit that CBPL provided credit assistance to them for the purposes of ss 8 and 115 of the NCCP Act: para 298. 229 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 301.1(a)-(b). 230 They admit that no inquiries and verification as required by s 117 of the NCCP Act was undertaken by CBPL (para 301.3) although the respondents also deny a contravention of s 117 of the NCCP Act: para 300. 231 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 302. 232 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions contravened by Channic: para 414.4. 233 All other matters are in issue. As to Ms Donna Gayle Yeatman and Mr Farren Yeatman 234 The respondents admit that CBPL provided credit assistance to them for the purposes of ss 8 and 115 of the NCCP Act: para 338. 235 They admit that no preliminary assessment as required by s 116(1) of the NCCP Act was made by CBPL due to the relevant period not being specified: para 341.1. 236 They admit that CBPL contravened the prohibition upon providing credit assistance in applying for a credit contract to Channic without a preliminary assessment having been done, and inquiries and verification having been undertaken, in contravention of s 115(1) of the NCCP Act: para 342. 237 Mr Hulbert admits that, by operation of s 169 of the NCCP Act, he is taken to have contravened the provisions contravened by Channic: para 414.4. 238 All other matters are in issue. As to Ms Leandrea Rose Raymond 239 The respondents admit that the original loan to Ms Raymond as varied by the "Raymond First Variation" and/or the "Raymond Second Variation" is a "Credit Contract" for the purposes of ss 4 and 204 of the NCCP Act: para 388. 240 The respondents failed to plead to para 392 of the statement of claim and thus they are taken to have admitted that Channic failed to make reasonable inquiries about Ms Raymond's requirements and objectives for the purposes of s 130(1) of the NCCP Act: para 392. 241 The respondents admit that Channic failed to make reasonable inquiries and verification required by s 130 of the NCCP Act: para 393.3. 242 The respondents admit that Channic failed to discharge its obligation to assess unsuitability for the purposes of s 128 of the NCCP Act: para 394. 243 Although, of course, the facts concerning the circumstances relevant to each of the consumers recited in the Table at [73] of these reasons must be considered individually, the case made against the respondents concerning Ms Kingsburra illustrates, fundamentally, the nature of the case made against the respondents in respect of each of the other consumers and the business method adopted by Supercheap, CBPL and Channic. 244 It is now necessary to consider, the evidence of Ms Kingsburra. part 6: The evidence of Ms ADELE DOROTHEA Kingsburra 245 Ms Kingsburra was born on 10 October 1972. She was almost 38 years of age when she engaged with the respondents between 6 July and 13 July 2010. 246 Ms Kingsburra lives within the Aboriginal Community at Yarrabah as part of what is called "Yarrabah Aboriginal Community Housing". Ms Kingsburra has lived in the community for approximately 30 years. Ms Kingsburra lives in a de facto relationship with Mr Garry Gilmartin. Ms Kingsburra has eight children aged, at the date of her affidavit, 8, 10, 11, 13, 16, 22, 24 and 25. She lives with Mr Gilmartin and her five youngest children. On 6 July 2010 when she went to Supercheap she was then living with Mr Gilmartin and her eight children: T, p 594, lns 34-38; T, p 619, lns 42-43. Mr Gilmartin suffers from depression and anxiety. Ms Kingsburra is his carer. Ms Kingsburra's 11 year old son, Lemac, has special needs as he suffers from a condition described as "absency seizure". 247 Ms Kingsburra attended the Slade School in Warwick as a boarder. She left that school in 1988 after Year 11. She was at the school for two years in 1987 and 1988. 248 After leaving school, Ms Kingsburra returned to the Yarrabah community. For brief periods of approximately six months or so, she lived outside the community in places such as Blackwater or Toowoomba. She undertook a general computer course at the Yarrabah Training Centre about two or three years ago although she has not undertaken any further study. She thinks that her English is "pretty good" and she says that she can read and write "pretty well". She says that sometimes she does not understand the meaning of some words. In giving her evidence Ms Kingsburra was well-spoken. She does not speak any other languages. Ms Kingsburra says that she has "done some casual work before". In about 2011, Ms Kingsburra was employed doing casual work as part of the Commonwealth Government Census but that work endured for only six weeks. In doing that work, she was required to "knock on people's doors and fill out census forms for people in Yarrabah". Ms Kingsburra says that she has not done any other paid work since she left school. 249 Ms Kingsburra elaborated upon these matters in the course of cross-examination. She agreed with counsel for the respondents that she had worked as a Postmistress at Yarrabah for "maybe two years" and in undertaking that work she was doing "CDEP two days a week", that is, a "work for the dole thing". Ms Kingsburra says that she was handling the mail in the sense of "just giving mail – handing mail out". Ms Kingsburra says that she was not responsible for "filling out any paperwork or finance or anything, just handling the mail": T, p 626, lns 36-47; T, p 627, lns 4-5. Ms Kingsburra accepted that this work approached something like 200 days of work assuming the period was about two years. 250 Ms Kingsburra also agreed that she lived for about two years in Blackwater. She was unemployed and lived there with her in-laws: T, p 627, lns 21-31. She also lived for a year prior to 2010 in Toowoomba. She was again unemployed and living with her in-laws: T, p 627, lns 33-35. 251 Ms Kingsburra says that in July of each year she usually receives a bonus from Centrelink as a "family tax benefit". Ms Kingsburra says she knew she was going to receive a benefit of about $2,000.00 or $3,000.00 in July 2010. Ms Kingsburra says that one of her sons had an 18th birthday coming around in October and she wanted to buy a car for him with some of the Centrelink benefit. She did not want to use "the whole lot". She had promised him a car if he graduated from school "for her" and since his birthday was in about three months' time, she thought she would try and "get him a car": T, p 595, lns 1-2. Ms Kingsburra said that she did not know where she was going to get the car from at the time but she spoke to a "couple of ladies" whose names she could not recall and they referred her to Supercheap: T, p 595, lns 10-16. 252 In her affidavit, Ms Kingsburra says that the people recommending Supercheap told her that she could "go down to see a guy named Colin at Super Cheap Auto in Cairns" [and as] long as you can come up with a deposit for them you can sign for the car and drive off". They also said that a "deposit for a small car would be $1,500.00 and a bigger car would be $2,000.00". 253 Ms Kingsburra thought she could afford a deposit of $1,500.00 because she knew she was going to be receiving some money in July from Centrelink. She did not want to spend too much on the car because she knew she could not "afford too much": T, p 595, lns 18-24. She knew that she would have to make some payments on the car other than the deposit but, by this stage, she had not thought about how much the other payments might be. Ms Kingsburra said that "roughly, like, anything under 10,000 really, you know" was something she may have had in mind: T, p 595, lns 28-29. 254 Ms Kingsburra says that in July 2010 she went to the Supercheap car yard on Mulgrave Road on a Tuesday (6 July) and spoke to a "tall bloke there" whose name was Kevin. This was Mr Humphreys although in the context of Ms Kingsburra's evidence I will continue to refer to him as Kevin. He worked in the car yard. In response to Kevin's question of whether he could help her, Ms Kingsburra said that she just wanted to see if she would be able to get a car for one of her sons as his 18th birthday was coming up. Ms Kingsburra said that since he would be 18, he would want something "sporty-looking". Kevin pointed out some cars. Ms Kingsburra thought that a teenager would not like those cars. Kevin pointed out a car parked outside the car yard and asked "what about that one there"? Ms Kingsburra thought that car looked "okay" and looked "sporty". Ms Kingsburra says that Kevin said: "well, that car runs well, because I know because I drive it to and from work, and also I took it for a drive up on the Atherton Tablelands and it drives pretty well up there on – on the Tablelands": T, p 595, lns 46-47; T, p 596, lns 1-2. 255 In her affidavit, Ms Kingsburra, in the context of the reference to the Atherton Tableland, thought that Kevin also said this: "it is pretty good out on the range and has no problems". That observation is consistent with the remark that: "I took it for a drive up on the Atherton Tablelands and it drives pretty well up there on – on the Tablelands". 256 In her affidavit Ms Kingsburra thinks that she noticed and pointed out to Kevin some paint damage on the back bumper bar of the car. It was peeling and Kevin said that Ms Kingsburra "could get that fixed for pretty cheap" and "it won't cost you much for a paint job" and "you could just get some spray paint and paint it yourself". 257 Ms Kingsburra had a conversation with Kevin about the price. She asked how much the car would cost and he said $8,990.00. Ms Kingsburra thought: "Wow, I can afford this. I can afford this car. It's a nice sporty car for my boy's 18th": T, p 596, lns 1-5. In cross-examination, Ms Kingsburra rather thought that she did not have a conversation with Kevin about how much the car would cost. Her recollection was that there was a sign on the front windscreen marked $8,990: T, p 614, lns 44-47; T, p 615, lns 1-4. Kevin then said that Ms Kingsburra would need to "come up with $1,500.00 deposit". Ms Kingsburra said that she did not have the deposit with her but would have it on Saturday. Kevin said he would hold the car until Saturday. Ms Kingsburra says that Kevin "also asked me to pay another 200 – [an] extra $200 for a new set of mags to go on the car". Ms Kingsburra says Kevin told her that "it's going to cost him 400 but he just want[ed] me to pay … $200 for the cost of the mags": T, p 596, lns 44-45; T, p 597, lns 1-4. 258 Ms Kingsburra says she then went to "[something] just like an office with a door" and Kevin introduced her to "a bloke named Colin". This was Mr Hulbert although in the context of Ms Kingsburra's evidence I will continue to refer to him as Colin. Kevin said to Colin "she's looking for a car for her son's 18th birthday": T, p 596, ln 11. Kevin then told her to come back on Saturday with the deposit and a Centrelink statement and an identification photo as well. Ms Kingsburra says that she did not have a discussion with anyone on that day about her income or her expenses. That was going to be discussed on the following Saturday, when she was to return to the car yard with the deposit, the Centrelink statement and identification although she was also asked to bring with her a letter from her partner Garry Gilmartin stating that he paid her board of $150.00 each fortnight towards food. 259 Ms Kingsburra says that she had the discussion as to these requirements with Kevin. 260 In her oral evidence, Ms Kingsburra rather thought that she did not have any discussion about expenses on the Tuesday and that this discussion was to occur on the following Saturday. There must have been some discussion about some aspects of her financial circumstances because Ms Kingsburra was asked by Kevin to bring the Centrelink statement and Mr Gilmartin's statement to the car yard the following Saturday. That explains the circumstance referred to in Ms Kingsburra's affidavit that she was asked by Kevin on the Tuesday about her Centrelink payments and her rental income. Kevin asked her whether she was on Centrelink payments. She said yes. She was asked whether she had to pay rent and she said yes, in an amount of $250.00 per fortnight deducted out of Centrelink payments. She was asked whether she had any other income and she said that she received $150.00 per fortnight board from Mr Gilmartin as a contribution towards the cost of groceries. 261 Kevin then asked Ms Kingsburra to produce a Centrelink statement and evidence of the payments by Mr Gilmartin. 262 At some point there was a discussion of loans with other people. 263 Ms Kingsburra says she was asked, by Kevin, whether she had other loans and she said that she had a loan with "Safrock", that is, "Cash Converters" and also with "GE Finance". Ms Kingsburra said that the loan from Cash Converters was still outstanding at this time and the GE Finance loan had been "put towards the debt collector" because "I … wasn't able to afford to pay them these instalments": T, p 597, lns 18-26. Kevin said that he would obtain a "credit check" concerning Ms Kingsburra. 264 In her affidavit, Ms Kingsburra says that she told Kevin that her monthly repayments to GE Finance were $200.00 although she was not making any repayments at that time and she said: "The loan with Cash Converters has three more fortnightly payments to go and I owe them about $800.00". 265 Ms Kingsburra was taken to a three page document at Tab 2 to her affidavit. On page 1, it bears the heading "Credit Application Form". Under that, it has "loan purpose". That space is blank. The next line is "Credit Terms". The word "vary" is inserted there. The next section is headed "Deal Basics (Office Use)". It has no entries. The next section, in a box, is headed "Personal Details". It has handwritten details. The last section, in a box, is headed "Notes". It has no entries. As to the handwritten information in the "Personal Details" box, Ms Kingsburra says that those handwritten inserted details are not her handwriting. In the "Personal Details" box someone has noted in handwriting that Ms Kingsburra has five dependants and apart from details of Ms Kingsburra's name, date of birth, current address, time at that address and whether Ms Kingsburra rents the premises, someone has noted that Ms Kingsburra's current employer is "Centrelink" and as to "income", three figures are noted: $462, $106 and $528 amounting to $1,096. Those amounts reconcile to amounts recited in a Centrelink statement dated 12 July 2010. The amount of $528 is the combination of a carer payment and a pension supplement ($485.60 and $42.90). The amount of $106 is a carer allowance. The amount $462 represents the total of the remaining benefits, namely $887.18 less Centrelink deductions of $425.62, which amounts to $461.56. 266 Page 2 contains two boxes. The first box is headed "Financial Information" and the second is headed "References". The handwriting in the "References" box is that of Ms Kingsburra. She remembers filling out that part of the form on page 2 and says that she filled it out on the day that she went to pick up the car. She thinks that when she was filling out that part of the form she may have spoken to Colin: T, p 598, lns 1-8. 267 Ms Kingsburra says that the handwriting in the "Financial Information" box is not her handwriting. On the last page there is a space for the signature of the applicant, the printing of the applicant's name and a date. Ms Kingsburra says that she signed the document on page 3, wrote in her name and wrote in the date, "06-07-10". Ms Kingsburra says that she did this on the day of her first visit to the car yard, namely the Tuesday. 268 In her affidavit Ms Kingsburra says that at the time of going to buy the car she was "doing okay moneywise" and although she had some loans to pay off, she thought she could afford to put a deposit on the car having regard to the Centrelink bonus payment. Apart from the bonus payment, Ms Kingsburra says that her regular fortnightly Centrelink payments were about $1,500.00. Deductions had to come out of that sum. She was also receiving $150.00 per fortnight from Mr Gilmartin. 269 At the time of buying the car, her expenses were these (as set out at para 58 of her affidavit): (a) my rent, which was $250 a fortnight to Yarrabah Community Housing, that was deducted through Centrepay; (b) my electricity bill, which I pay through Centrepay, I was paying about $150 a fortnight; (c) my gas bill, which was about $170 a quarter, which I pay in cash; (d) my food and groceries, [on] which I spent about $120 a week on food for me and the family, it's a bit more now; (e) my pre-paid mobile phone, which I got in July 2010, [on which] I spend about $30 a week on recharges; (f) school fees for the kids of about $400 per year, which I pay in January, and then whatever they need for books, uniforms, stationery and shoes through the year; (g) repayments on my loan with Cash Converters … of about $200 per fortnight; and (h) instalments on an advance I have from Centrelink ("Centrelink Advance") of about $25 per fortnight. 270 Ms Kingsburra says that at the time of buying the car her debt to GE Finance was $1,700.00 and she had stopped making the payments. The debt to Cash Converters was about $800.00 and the collection of that debt was also in the hands of a debt collector. 271 Returning to page 2 of the Credit Application Form, Ms Kingsburra thinks that at the time she wrote the information in the "References" box, it was probably Colin who was asking her about her expenses. Ms Kingsburra cannot recall whether anything was written in the "Financial Information" box when she was filling the "References" box. In the "Financial Information" box, the first line asks the question: "do you have any know[n] Credit Defaults?" Ms Kingsburra says that she was not asked to fill in anything in answer to that question and added the observation (about the Financial Information box) that: "they're not my handwriting": T, p 598, lns 15-24. Ms Kingsburra says that none of the handwriting in this box is her handwriting. The next information line is "Rent/Mortgage" with a space at the end of the line, of "$ per week". Each information line ends in that way to enable the insertion of an amount. 272 In the Rent/Mortgage line the words "already taken" are inserted which Ms Kingsburra understands to be a reference to Centrelink deductions for the payment of rent and electricity: see para 58(a) and (b) recited at [269] of these reasons. The next line is "Credit Card(s)" and there is no entry of an amount for that item. The next line is "Food" and an amount of $480 is inserted with the word "week" crossed out and "Mt" added. The next two lines are "Phone (H)/Mobile" and "Vehicle Expenses". No amount is entered on either line. The next line is "Personal Loan(s)" and an entry appears there of "Cash Converters (3 = Finalised) $807" (followed by the standard words "per week"). The next line is "Utilities" and the words inserted there are "already taken". The next line is "Child Support" and no entry appears. The next line is "Other" and on that line there is an entry "GE". An amount is entered on that line of $200 (and the pro forma words "per week") and then the amount is crossed out. The total expenses ("Exp") are shown as $1,487.00. Plainly they are not weekly expenses. Total income ("Inc") is shown as $2,374.66. Under that, two figures appear on two separate lines in this way: DSR 54% DSR 28% 273 The difference between total income and total expenses (as recited in the box) is $887.66. The weekly repayments under the Channic Loan Contract with Ms Kingsburra are $119.45. That represents approximately $477.80 per month. That monthly repayment as a proportion of Ms Kingsburra's residual income (as calculated in the box, amounting to $887.66) is 53.82% or approximately 54%. 274 As already mentioned, Ms Kingsburra says that she signed page 3 of the document with Kevin on the Tuesday and that she later went to the premises and she filled out the names of family members in the "References" box. She signed and dated page 3. She says that Kevin filled out the first page and the information in the "Financial Information" box. 275 In her affidavit, Ms Kingsburra says that after she signed the document, she had a conversation with Kevin about obtaining the documents earlier mentioned and bringing them to the car yard on the following Saturday. Kevin had already said that the car would cost $8,990.00 and that the deposit would be $1,500.00. There had also been the discussion about $200.00 for the mag wheels. Ms Kingsburra says she asked Kevin how much the instalments would be after the payment of the deposit. Ms Kingsburra says that Kevin said: "roughly $120 a week for about 2 years". Ms Kingsburra says that at the time she thought that she could afford such a payment and was surprised that it was "so easy to get a car". She says that "[w]ith all my problems with finance in the past and the debt collectors I thought it would be a lot harder". In her oral evidence, Ms Kingsburra thought that she discussed the weekly payment with Colin. 276 Ms Kingsburra then left the car yard premises. 277 She returned the following Saturday, 10 July 2010. 278 The mag wheels had been put on the car. Kevin was at the car yard. Ms Kingsburra says that she told Kevin she had the deposit. She was asked whether she had a Centrelink statement and a copy of her identification card. She had neither of those things. Kevin told her that she could not take the car "because you don't have your Centrelink statement or your ID and the contract isn't ready yet either". Ms Kingsburra was also told that she would need to bring the letter from Garry saying that he pays $150 a fortnight board to Ms Kingsburra towards food. 279 Ms Kingsburra says she was told to come back on Monday with those things. 280 The Centrelink statement provided to Kevin is dated 12 July 2010. Ms Kingsburra says that on Monday morning, (which was 12 July), Ms Kingsburra went to the Centrelink Office in Yarrabah and obtained the Centrelink statement and a Rent Deduction Statement. Ms Kingsburra's daughter-in-law and niece borrowed a car and drove Ms Kingsburra into Cairns to the car yard to pick up the car and sign a contract. She had with her a copy of her ID, the letter from Garry and the Centrelink statement dated 12 July 2010. At para 29 of her affidavit (and following), Ms Kingsburra says that her third visit to the car yard occurred on the Monday following the second visit on the Saturday which, in turn, followed the first visit on the Tuesday. Those dates are 12 July, 10 July and 6 July 2010, respectively. The Credit Contract was signed on the third visit. It, however, is dated 13 July 2010 and the respondents admit that it was signed on 13 July 2010. The third visit must have been on Tuesday not Monday. Presumably, Ms Kingsburra obtained the Centrelink statement on Monday, 12 July 2010. She must have then gone to the car yard for the third visit the next day. 281 In her oral evidence, Ms Kingsburra says that she was also asked to provide a bank statement and on that third visit she did provide a bank statement. 282 Page 2 of the Centrelink statement contains information under the heading "Future regular entitlements and payments". Ms Kingsburra says that these were the entitlements and payments she was receiving. They are: Payment Type Amount Date to be paid Carer Payment $485.60 19 July 2010 Pension Supplement $42.90 19 July 2010 Carer Allowance $106.70 26 July 2010 Family Tax Benefit Part A $801.50 26 July 2010 Family Tax Benefit Part B $49.98 26 July 2010 Large Family Supplement $33.18 26 July 2010 Rent Assistance $2.52 26 July 2010 283 These fortnightly payments amount to $1,522.38. On a monthly basis the payments amount to approximately $3,044.76. The statement shows that "Centrepay deductions" were made from Ms Kingsburra's entitlements. The first deduction is an amount of $400.00 which represents the rent payment of $250.00 and the electricity payment of $150.00: see para 58(a) and (b) at [269] of these reasons. The second deduction is a fortnightly amount of $25.82. Monthly payments, after those deductions, amount to $2,593.52. Ms Kingsburra also received $150.00 a fortnight from Mr Gilmartin. 284 The letter from Mr Gilmartin is Tab 5 to Ms Kingsburra's affidavit. Apart from the documents already mentioned, Ms Kingsburra was not asked for any other documents nor any documents in relation to the GE loan or the Cash Converters loan. 285 On the front page of the Centrelink statement there is a handwritten amount of $3276.65. Ms Kingsburra says that this is not her handwriting and she does not recognise it. 286 Ms Kingsburra says that when she and her daughter-in-law and her niece arrived at the car yard they went up to Kevin. He took them into the office. Ms Kingsburra gave the document she had brought with her to Kevin. Kevin gave the documents to Colin. Colin and Ms Kingsburra then sat at a desk and Colin "pulled out the contracts for me to start signing": T, p 603, ln 7. 287 In her affidavit, Ms Kingsburra says that Colin showed her the contract and said words to the effect: "please sign this". Ms Kingsburra was shown a document by ASIC's counsel described as "Consumer Loan Contract and Mortgage No: 5030" (the "Credit Contract"). She said that she did not know what the "mortgage part was about": T, p 603, ln 17. Ms Kingsburra identified her initials on page 1 next to the place marked "Borrower(s) To Initial Here". She also identified her initials on page 2 and also next to some figures in the Schedule on page 2. She also identified her initials on page 3 and so on throughout the document in the place provided for the borrower to initial the document. Ms Kingsburra acknowledged her signature on pages 8 and 9 of the document and also at the end on page 22 of the document. 288 In her affidavit, Ms Kingsburra says that she did not get a chance to read the Credit Contract before signing it. She says that Colin "did not explain anything about the Credit Contract to me" and "Colin just turned the pages and pointed to where I had to sign": para 41. At para 42, Ms Kingsburra says that when she signed the Credit Contract she understood that the car was "going to be $8,990" which is what "I agreed with Kevin on the Tuesday and that was everything I was going to pay for the car". Ms Kingsburra says, at para 42, that she had paid a deposit of $1,700.00, "so I thought I was borrowing the rest for the car and would pay that back in instalments". She also thought that the instalments would be $120.00 a week over two years as Kevin had told her. Weekly payments, on that footing, over two years, would amount to $12,480.00. 289 In cross-examination Ms Kingsburra gave evidence that the formulation of $120.00 per week over two years did not alert her to the fact that she was going to be paying "a lot more money back" than the price that was displayed on the vehicle: T, p 621, lns 42-44. Ms Kingsburra says that she was not concerned to try and work out some idea of the total amount she was going to have to pay: T, p 622, lns 5-6. Ms Kingsburra says that it never dawned on her in the week between the first time she went to Supercheap and was told by Kevin that the instalments would be $120.00 per week over two years and the signing of the contract that she was going to be paying more than the advertised price of the car, "because I was so excited of getting this car for my son's 18th birthday": T, p 626, lns 15-21. 290 In her oral evidence, Ms Kingsburra explained the circumstances in which she signed the Credit Contract in this way at T, p 604, lns 10-24: … at the time I was very anxious for a car, as you can tell by my story in the statement, and I didn't quite understand the contract and as we were going through, … because Colin didn't go [into] details – you know, it was just quickly – briefly of what's on the page, and for me to sign and initial where needed. And, yes, I thought it was – it wasn't right, because it was too quick that the contract was signed off with so many pages. [I] think we must have done it in, like, 15-20 minutes, or something. And I didn't know about – is it broker – broker or something [like] that … that I had to pay Kevin the salesman $900 as well as my contract, and I didn't know what 48 per cent was at the time. Well, no, I still don't – don't know the amount for 48 per cent. And I didn't know I was going to be paying [$13,000] for this car, because I knew it was second-hand and used, and if I had known that at the time, I wouldn't have went ahead with the contract and signed any papers. And knowing that I've got to pay someone else $900 too, well, I wouldn't have done it. 291 Page 1 of the Credit Contract contains a financial table in these terms: FINANCIAL TABLE Amount of credit of the loan $8,301.50 Annual percentage rate 48% per annum Total amount of interest payable $4,832.85 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 110 consisting of 109 repayments each of $119.45 Plus a Final Repayment of $114.30 Total amount of repayments $13,134.35 Date of first repayment 19/07/2010 Frequency of repayment Weekly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current as at this date 13/07/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 292 At the end of the Financial Table, there is a reference to a "Comparison Rate" in these terms: Comparison Rate 47.4631% per annum This rate is calculated on the $8,301.50 credit amount over a 110 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 293 In oral evidence, Ms Kingsburra was taken to the Financial Table and the amount of the loan of $8,301.50. She said that she thought that this was the amount that was "supposed to be left", "without the deposit". She said: "that's all I thought I was going to be paying": T, p 604, lns 42-43; T, p 605, ln 1. Ms Kingsburra was then taken by ASIC's counsel to the elements of the transaction and agreed that the purchase price of the car was $8,990.00 and that she had paid a deposit of $1,500.00 plus $200.00 for the mag wheels. Thus, the purchase transaction balance was $7,290.00. Ms Kingsburra acknowledged that the recited amount of the loan of $8,301.50 was more than the purchase transaction balance. Ms Kingsburra said that she did not realise that the amount of the loan was more than the purchase transaction balance until it was pointed out to her by ASIC although Ms Kingsburra seemed to attribute the difference to the interest rate of 48%. 294 Ms Kingsburra said that nobody told her, at the time, that the interest rate was 48%: T p, 605, ln 16. 295 Ms Kingsburra was also taken to the "total amount of repayments" entry in the Financial Table of $13,134.35 and gave evidence that nobody had pointed out to her, at the time, that the repayments were going to be that amount: T, p 605, lns 19-20. Ms Kingsburra gave evidence, in response to a question from counsel, for ASIC that she did not appreciate that the amount of $13,134.35 did not include the deposit she had paid of $1,500.00. She said that she did not appreciate that, in fact, she would be paying $14,600.00 (the accurate amount being, on that footing, $14,634.35) and, in answer to the question "if you had been told that at the time, what would you have [done]?, Ms Kingsburra also said, "I wouldn't have bought the car": T, p 605, lns 18-26. 296 Apart from Ms Kingsburra's oral evidence just described, Ms Kingsburra addressed these matters in her affidavit. At para 46, she says that ASIC pointed out to her that under the Credit Contract she was borrowing $8,301.50; that she would be paying interest of $4,832.85 and making total repayments of $13,134.35. As to the amount of $8,301.50, she says that she did not know she was borrowing this amount and thought that she was borrowing the price of the car less the deposit. As to the interest of $4,832.85 she says that she did not know that she was "going to be paying that much in interest". As to the total repayments of $13,134.35 she says that she "did not know that". At para 47, she repeats that at the time she signed the Credit Contract, her "understanding was that the total amount of repayments would be $8,990.00 less the deposit and she adds that "if they wanted to charge me $13,134.35, I do not understand why they didn't put that price on the car". 297 The first page of the Credit Contract recites this: We, Channic Pty Ltd, ATF trading as AHA New Start Finance Trust, ABN No: 60 141 145 753, (we, us, the Lender) of [the Earlville address] offer to enter into a loan contract with: Adele Dorothea Kingsburra (you, Borrower/Mortgagor No. 1) [Address] On the terms set out in the Schedule below [pages 2 to 9 inclusive of the contract] and the General Conditions [pages 10 to 22] contained in this document. This offer replaces any previous offer made following your credit application. Any such previous offer is cancelled. The lender is treating this offer as being regulated by the National Credit Code. 298 Ms Kingsburra was taken to the above opening part of the contract and gave evidence that she was not told at the time who Channic was: T p 605, ln 32. 299 The Schedule on page 2 sets out further information in a schedule. The top four boxes of the schedule are set out in the following way: Schedule Offer date 13/07/2010 Loan Draw Down Date 13/07/2010 Loan term commencing from the Draw Down Date 110 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To CHANNIC PTY LTD for Car Purchase SUPERCHEAP CAR SALES $7,290.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 300 In this part of the Schedule, a line is crossed through Channic Pty Ltd and Supercheap Car Sales is handwritten in. Ms Kingsburra's initials appear next to that change to Item 3 in the Schedule. 301 As to CBPL, Ms Kingsburra was asked whether anyone told her "who Cash Brokers were" and she answered: "No". She was asked whether anyone had told her "about brokerage being paid" and she answered: "No". She was asked whether anyone had told her "about any other fees or expenses associated with the transaction" and she answered: "No": T, p 605, lns 28-44. 302 In her affidavit Ms Kingsburra says that she does not remember any business called Cash Brokers and says: "I never wanted to borrow any money to pay an extra $990.00 to anyone". She adds that she could not afford to do that and says that she does not know what brokerage is. She adds that no-one told her about "about this before I purchased the car": para 52. Ms Kingsburra also refers to a document at Tab 7 of her affidavit which is an invoice from CBPL to Channic concerning Ms Kingsburra. The invoice is for brokerage of $990.00 representing a brokerage fee of $900.00 and GST of $90.00. Ms Kingsburra says that she had not seen this document before being shown it by an ASIC officer and adds that until she was informed of the brokerage component she was unaware that she had been charged a brokerage fee of $990.00: para 53. She adds: "if I had seen this document at the time of buying the car, I would have asked what I was paying $990.00 for. 303 She was also asked, "did you know who was giving you the finance on the car or who was giving you the credit to pay off the car" and answered that she thought she was "just buying it [the car] off Colin – the car yard people who were selling the car": T, p 606, lns 1-3. 304 Ms Kingsburra's second visit to the car yard was on Saturday, 10 July 2010. She knew she would be returning to the car yard to sign a written contract on Monday. She thought that she would be going to the car yard just to "sign the contract" and "take the car home": T, 622, lns 34-35. She says that she was not "interested to know about the writing on the paperwork, the contract": T, p 622, lns 40-41. That was so because she thought "it was too easy to get this car": T, p 622, lns 43-44. Ms Kingsburra says that no-one had told her, leading up to her first visit to the car yard, that if she wanted to borrow money to buy a car from Supercheap, she would have to pay interest: T, p 623, lns 8-10. Ms Kingsburra accepted that the bank statement shows an ATM fee of $2.00 for making a withdrawal and that it shows an entry on 1 March of "debit INT to 25 February of $1.84". Ms Kingsburra did not know that the entry represented a debit of interest: T, p 623, lns 38-46. 305 Ms Kingsburra accepted that the bank statement shows a range of fees such as account fees, overdraft fees and ATM fees. Ms Kingsburra said that she looked at the bank statements simply to check the balance and did not actually look at any of the entries. She said that she was not aware of the charges the banks might render as shown in the bank statement: T, p 624, lns 38-46. 306 As to GE Finance and Cash Converters, Ms Kingsburra said that those companies did not send her statements about her loans. She said that GE Finance did not send any statements to her even when default had occurred and it did not send her a letter about the default: T, p 625, lns 5-15. Sometime in 2013, Ms Kingsburra received a letter from a debt collector for GE Finance stating that she was in debt in an amount of $1,700: T, p 625, lns 21-23. 307 Ms Kingsburra gave evidence that when speaking with Kevin on the first day she went to Supercheap she told him that the GE Finance loan had been referred to a debt collector and that she was not making any repayments on the loan at that time. She says she has never heard from them, subsequently: T, p 620, ln 31. She told Kevin that she owed Cash Converters approximately $800.00 and thus there were three more fortnightly payments to go, at least at that time. She did not make the payments because she could not afford to pay it back. That matter was put in the hands of debt collectors as well and Ms Kingsburra has not heard from them since, either: T, p 620, lns 33-47. 308 Ms Kingsburra also gave evidence that nobody spoke to her about getting legal advice about the contract and nor did anybody suggest that she should read the document: T, p 606, lns 18-21. 309 It is necessary to say some further things about the Credit Contract. 310 Schedule 1 (page 5 of the Credit Contract) sets out a list of the dates of payment for each weekly instalment. 311 Page 8 contains a box under the heading "IMPORTANT" in these terms: BEFORE YOU SIGN IMPORTANT THINGS YOU MUST KNOW • READ THIS CONTRACT DOCUMENT so that you know exactly what contract you are entering into and what you will have to do under the contract • Once you sign this contract document, you will be bound by it. However, you may end the contract before you obtain credit, or a card or other means is used to obtain goods or services for which credit is to be provided under the contract, by telling the credit provider in writing, but you will still be liable for any fees or charges already incurred. • You should also read the information statement: "THINGS YOU SHOULD KNOW ABOUT YOUR PROPOSED CREDIT CONTRACT" • You do not have to take out consumer credit insurance unless you want to. However, if this contract document says so, you must take out insurance over any mortgaged property that is used as security, such as a house or car • If this contract document says so, the credit provider can vary the annual percentage rate (the interest rate), the repayments and the fees and charges and can add new fees and charges without your consent. • If you take out insurance, the credit provider cannot insist of any particular insurance company • Get a copy of this contract document • Fill in or cross out any blank spaces • Do not sign this contract document if there is anything you do not understand • If this contract document says so, the credit provider can charge a fee if you pay out your contract early. A Kingsburra Signature of Borrower Hulbert Signature of Witness Date 13.7.2010 312 Ms Kingsburra signed page 8 immediately under the box in the space provided. That page also says this: You should retain the additional copies of this document for your records. (a) PLEASE ALSO ENSURE THAT YOU COMPLETE BOX A OR BOX B. YOU SHOULD COMPLETE BOX A IF YOU CHOOSE TO OBTAIN LEGAL ADVICE OR ALTERNATIVELY, COMPLETE BOX B IF YOU CHOOSE NOT TO OBTAIN LEGAL ADVICE. (b) WE STRONGLY RECOMMEND THAT YOU OBTAIN INDEPENDENT LEGAL AND FINANCIAL ADVICE REGARDING YOUR LOAN CONTRACT BEFORE YOU SIGN YOUR LOAN CONTRACT. 313 Page 9 contains Box A and Box B. Box A is crossed out. Box B is signed by Ms Kingsburra and, in plainly different handwriting, contains the date 13th July 2010. Box B is in these terms: BOX B THIS BOX MUST BE COMPLETED IF YOU CHOOSE NOT TO OBTAIN LEGAL ADVICE. IF YOU HAVE ANY DOUBTS OR WANT MORE INFORMATION, DO NOT SIGN THE CONTACT [sic] UNTIL YOU ARE SATISFIED WITH THE RESPONSES OR HAVE SOUGHT LEGAL ADVICE We recommend you obtain legal advice I/WE CERTIFY THAT: • I/we have been handed a copy of the loan contract ("Documents") and Information Statement. • I/we have read this certificate and understand this is the credit provider's standard agreement upon which it intends to rely. I/we have been advised that for my/our own benefit and protection, I/we should read the entire loan contract and the conditions under which I/we have been granted the loan carefully before signing them. I/we have also been advised that if I/we do not understand any point that I/we should ask for further information and to make sure I am/we are satisfied with the credit provider's responses. • I am/we are all the borrower(s) (and if applicable), the mortgagor(s)) named in the Documents. • I/we have been given the opportunity to obtain legal advice on the nature and effect of the Documents but have chosen not to do so of our own accord. • I/we have been advised that prior to signing the Documents, I/we should satisfy myself/ourselves that I/we understand the full nature and effect of my/our liabilities to the credit provider and obtain appropriate advice, legal or otherwise, if I am/we are at all uncertain of my/our position and I/we do not require the Documents to be translated into another language. • There are obligations and risks involved in signing the Documents and I/we understand this. • I/we sign the Documents freely, voluntarily and without pressure from anyone. Please delete any statement that does not apply DATED: the 13th day of July 2010. SIGNED: A Kingsburra (borrower(s) signature) ALL BORROWERS MUST SIGN 314 Page 22 of the Credit Contract is also signed by Ms Kingsburra as the signatory of an account recited in a document described as a "Direct Debit Request". By that document Ms Kingsburra authorised and requested debit payments to be made to her account with the CBA Bank through the "PayGate Direct Debit Billing System", by reference to a particular user ID number, by "AHA New Start Finance Trust". The Credit Contract, of course, is entered into by Channic as trustee of that trust. 315 Ms Kingsburra was taken by ASIC's counsel to a document called "PAMD Form 37a" under the Property Agents and Motor Dealers Act 2000 (Qld) (the "PAMD Act"). Form 37a is concerned with important pre-purchase information relating to a cooling off period. Ms Kingsburra signed an acknowledgement on page 2 that she had received the form and Appendix A to it. 316 Ms Kingsburra was also taken to Form 38a-1, a notice of statutory warranty, under the PAMD Act. Ms Kingsburra also signed an acknowledgement on that form of her obligation to give Supercheap written notice within the warranty period should she wish to access the warranty. Form 38a-1 sets out a "Class B" warranty for the vehicle which, put simply, recognises a warranty for one month from the date of sale or a distance travelled of 1,000 kilometres after sale, whichever happens first. Clause 5 sets out a warranty that the vehicle is "free from defects (other than the defects not covered by the Statutory Warranty) at the time of sale and for the warranty period" and that any "defects in the vehicle reported in writing during the warranty period will be repaired by the warrantor [ANG trading as Supercheap] free of charge". A vehicle has a "defect", for the purposes of the warranty, if part of the vehicle does not perform its intended function or has deteriorated to an extent where it cannot reasonably be relied on to perform its intended function. Clause 6, however, sets out the defects not covered by the warranty. 317 Ms Kingsburra was also taken to a document entitled "Contract to Buy a Motor Vehicle". Ms Kingsburra signed that document as buyer and signed a delivery receipt. 318 Ms Kingsburra was also taken to Form 38a-2 under the PAMD Act which is concerned with the dealer giving notice of the statutory warranty period applicable to the vehicle. It recites that the warranty starts on 12 July 2010 and ends on 12 August 2010. Ms Kingsburra signed page 1 of that document which recites that she took delivery of the vehicle on 13 July 2010. 319 Ms Kingsburra was also taken to Form 63 of the PAMD Act which is concerned with a guarantee of title to the buyer by the motor dealer. Clause 7 contains a declaration signed by Ms Kingsburra that she took delivery of the vehicle and received a copy of Form 63 and a "security interest certificate" for the vehicle. 320 As to Form 37a, Ms Kingsburra says that she could not recall whether she was given any explanation of "what that document was": T, p 606, lns 39-40. She could not recall when she signed the document. 321 As to the Form 38a-1, Ms Kingsburra says that she could not recall whether anyone gave her an explanation of that document: T, p 607, lns 8-9. 322 As to the Contract to Buy a Motor Vehicle document, Ms Kingsburra says that that document was not explained to her when she signed it: T, p 607, lns 19-20. 323 As to the Form 38a-2, Ms Kingsburra says that she could not recall whether anyone talked to her about the statutory warranty period: T, p 607, lns 28-29. Ms Kingsburra says that she has no knowledge of, or cannot recall, anyone telling her about a warranty for the car that she had or may have had: T, p 607, lns 31-41. 324 As to the declaration signed by Ms Kingsburra on Form 63, Ms Kingsburra says that this document was not explained to her at the time and, at the time of giving evidence, she still did not understand what it meant: T p 607, lns 43-47. 325 Ms Kingsburra was asked whether, when she left Supercheap with the car she had any copies of the documents just described. Ms Kingsburra says that she was given a manila folder and her belief is that Colin put copies of the papers that had been signed in the folder: T, p 608, lns 9-22. At para 43 of her affidavit, Ms Kingsburra says that there was a "lot of paperwork" in the folder but Colin did not explain to her "what it was". Ms Kingsburra says that she does not have the folder anymore as it was burnt "when there was fire at my place". Ms Kingsburra says that she did not read any of the documents in the folder: para 43. Ms Kingsburra assumes that the signed Credit Contract was in the folder as she had just finished signing it and taking possession of the car: T, p 637, lns 1-8. As to the PAMD Act documents, Ms Kingsburra agrees that Mr Hulbert signed those documents. Ms Kingsburra disagreed with counsel for the respondents that Mr Hulbert explained the documents to her. She initially said that she could not remember his doing that. When asked: "are you saying that he never explained [the documents] to you or are you saying you don't know, Ms Kingsburra responded, "I can't remember". Ms Kingsburra does not know whether the PAMD Act documents were in the manila folder. She agrees that she did not read any of the documents in the folder. 326 Ms Kingsburra says that she had issues with the car from the very outset. Ms Kingsburra's daughter-in-law was the driver of the car when leaving the car yard. At the outset, the car had virtually no petrol in it and they immediately had to put $15.00 (all they had) of petrol into it. More particularly, when driving the vehicle home to Yarrabah and going over any bumps, the passenger side back wheel kept bumping up into the inside of the wheel compartment of the car. Also, the front passenger door could not open from the inside. When taking possession of the car, Ms Kingsburra pointed out to Kevin that paint was peeling off the back bumper bar and also at the front. Ms Kingsburra asked Kevin whether these things would be fixed and how much would it cost. Kevin said it would be "pretty cheap" and that Ms Kingsburra could buy spray paint and "spray paint over that". When Ms Kingsburra arrived home and could not open the front passenger door, she made a telephone call to Kevin who said: "we can get that fixed, but we just can't at the moment". Ms Kingsburra says she called him again and was told that he was "pretty flat out still". Ms Kingsburra says that Supercheap fixed the door but then the window winder would not operate. Kevin said that he would not be able to fix that problem as well because he was "pretty flat out". 327 The other problem was that the mag wheels were too big for the car. The mag wheels kept bumping up on the inside of the car making the tyres go flat. Ms Kingsburra had to buy a new set of tyres. Ms Kingsburra says that the tyres for the mag wheels cost $180.00 each and she had to "replace it three times" at a total cost, I infer, of $540.00. Mrs Kingsburra's son bought a new set of mag wheels to properly fit the vehicle for $1,600.00. 328 Another problem was that the spare tyre in the car when purchased was "old and rusted and flat". 329 At to the paint damage, Ms Kingsburra obtained a quote of $800.00 to repair the paint damage. She decided not to have that work done because she regarded the quote as not cheap. 330 The first instalment under the Credit Contract of $119.45 was due on 19 July 2010, according to the Schedule. By December 2010, Ms Kingsburra was having problems paying the weekly instalments and a tow truck arrived and took the car. Colin held the car until Ms Kingsburra paid the arrears. Ms Kingsburra says she paid $800.00 "over a couple of fortnights and I got the car back". However, Ms Kingsburra fell behind again. Just before Christmas 2011, Colin telephoned Ms Kingsburra and told her that she was $1,200.00 behind on her repayments and that he was going to "come and get the car". Ms Kingsburra told him that she was struggling at the time and had to travel to her brother-in-law's funeral. Colin told her that when she returned she would "have to come in and make some payments, no excuses". Ms Kingsburra says that she told him: "ICAN is onto it and some lawyers were coming to speak to me" to which Colin said: "I don't care what you do". 331 Ms Kingsburra says that Colin did not call her again. However, the direct debits kept coming out of her bank account until February 2013. Ms Kingsburra says that she spoke to Kevin because she wanted to change the direct debit payments to a Tuesday night as her Centrelink payments were made on Tuesday evening. Ms Kingsburra wanted to do that because the repayment was taken out on Wednesday evening and by then sometimes there was no money left in the account. Ms Kingsburra says that Colin refused to change the repayment date. 332 Ms Kingsburra was asked whether she was "still paying for the car". She says that the payments stopped being made and she thinks that happened after the first time ASIC came to see her. Ms Kingsburra says that her son gave the car back to her and she is "trying to get it repaired": T, p 611, lns 4-18. 333 Ms Kingsburra says that she has never received a statement from anyone showing how much she has paid in relation to the car or how much she might owe although she does remember receiving a letter from Colin asserting that one of her direct debits had not "come out [of the account]". 334 Ms Kingsburra gave evidence that one of the documents she brought to the car yard and gave to either Kevin or Colin was a bank statement she had obtained. The bank statement in the ASIC trial bundle is Ms Kingsburra's bank statement for the period 27 February 2010 to 31 May 2010. The bank statement, obviously enough, shows the pattern of payments received and expenses or debits incurred throughout the period. To take the month of March, for example, the Centrelink revenue in that month was this: Date Transaction Amount 1 March 2010 EDU payment $377.00 261B9537 etc 1 March 2010 Carers $468.00 221B954 etc 8 March 2010 AUS GOV FAMILIES $87.36 FB1B962 etc 8 March 2010 AUS GOV FAMILIES $621.72 841B962 etc 8 March 2010 Carers $106.70 441B96154 etc 12 March 2010 AUS GOV FAMILIES $134.14 841B96854 etc 15 March 2010 EDU payment $377.00 261B9697 etc 15 March 2010 Carers $468.00 221B97054 etc 19 March 2010 Communities $148.44 6000-00022 etc 22 March 2010 AUS GOV FAMILIES $87.36 FB1B97814 etc 22 March 2010 AUS GOV FAMILIES $356.74 841B97814 etc 22 March 2010 Carers $106.70 441B97754 etc 29 March 2010 EDU payment $377.00 261B98574 etc 29 March 2010 Carers $469.57 221B98654 etc 335 These amounts add up to $4,185.73 for the month of March. The payments into the account on 1 March 2010 ($845.00) may well represent payments for the month of February, in which event the monthly payment is $3,340.00 which is consistent with the Centrelink statement. 336 In cross-examination, Ms Kingsburra agreed with these propositions having regard to the bank statement. Ms Kingsburra was receiving, at the relevant time, five separate kinds of benefits from Centrelink. The first was a: "sampling education (EDU payment)" of $377.00 being "Abstudy" (living away from home allowance) for Ms Kingsburra's son. That money ultimately went to him. The second payment was a carer payment for $468.00 which went to Ms Kingsburra. The third payment was a Families payment of $87.36. The fourth payment was another Families payment of $621.72 and the fifth payment was a carer's payment of $106.70. Including the Abstudy payment for Ms Kingsburra's son, the total of those payments amounts to $1,660.78: T, p 618, lns 23-45; T, p 619, lns 1-6. That sum less the Abstudy payment is $1,283.78, each fortnight or $2,567.56 each month. Ms Kingsburra gave evidence that her son would withdraw the Abstudy payment from the account. He was doing his schooling in Townsville. 337 Apart from those amounts, Ms Kingsburra agreed that she was receiving $150.00 each fortnight from Mr Gilmartin for board. Ms Kingsburra also agreed that with eight children living in the house, she and Mr Gilmartin were finding it a bit of a struggle especially with newborn babies and so three of the elder children were also paying board "if they could but if they couldn't afford it … some time(s) they won't". Ms Kingsburra said that sometimes they will [pay board] and if they don't give her "money in hand, they will offer to buy a bit of food, and I will do the rest": T, p 619, lns 37-45; T, p 620, lns 1-8. Ms Kingsburra seemed to accept the three eldest children paid $100 board each a fortnight "when they could". It was always cash but sometimes they would buy food or other necessaries for the home: T, p 627, lns 42-46; T. p 628, lns 1-2. 338 The statement shows a pattern of expenditure along these lines. 339 The account received $845.00 on 1 March 2010. By 2 March 2010, an amount of $862.84 had been drawn or debited to the account which caused the account to be overdrawn by $81.95. By 5 March 2010, the account was overdrawn $399.93 or a further amount of $317.98. Then on 8 March 2010, $815.26 was credited to the account from Centrelink which resulted in a credit of $415.33 except that on 8 March 2010 there were debits and withdrawals of $410.00 resulting in a credit of approximately $5.33. Between 12 March and 15 March 2010, Centrelink payments of $979.14 were paid into the account and by 16 March 2010, $929.00 was either debited or withdrawn (cash withdrawals) from the account, again overdrawing the account to approximately $79.00. 340 The pattern is clear enough. As soon as funds were deposited into the account by Centrelink, the monies were either immediately withdrawn or debits made to the account such that within a day or two of the Centrelink payments, the account was again overdrawn. In fact, the account shows that the cash advances were such that the account fell into overdraft in amounts of $210.26 and $551.94 and then $349.60 and then $358.83. It can be seen that there is virtually no latitude in the immediate demands made upon the revenue credited to the account. It is expended or withdrawn virtually immediately funds are received. Ms Kingsburra is entirely dependent upon the Centrelink receipts and exhausts each payment virtually immediately. 341 As to the pattern, some examples are these. An amount of $845.00 was deposited into the account on 1 March 2010 and on the same day $470.00 was withdrawn to buy groceries "being at home with eight kids": T, p 611, lns 36-37. An amount of $300.00 was, unusually, withdrawn on that day to pay her son part of the Abstudy payment as the credit card was not working in Townsville. It would otherwise have been taken out by him in Townsville in an amount of $377.00. A Credit Corp debit of $50.00 was made to the account on 2 March 2010 and it appears as a weekly debit throughout the statement. Ms Kingsburra did not know what that debit was about: T, p 611, lns 39-44. Ms Kingsburra said that the regular cash withdrawals each week were for the "same thing" – buying groceries, other expenditures for the children, petrol, car repairs and other such matters: T, p 612, lns 11-20. These cash withdrawals would be spent at the time of the withdrawals: T, p 612, lns 24-38. 342 Ms Kingsburra was also taken to two other documented cash advances. The first has a contract date of 26 June 2010 in an amount of $1,078.12 (Cash Converters). The statement shows that four weekly payments of $269.69 were to be paid and they were paid on 16 July, 23 July, 30 July and 31 July 2010 of that year. At 13 July 2010, the entire contract amount was the subject of future payments. The second cash advance has a contract date of 31 July 2010 in an amount of $709.66 with four weekly repayments of $177.52 to be made in reduction of the advance. Those repayments were made on 13 August, 20 August, 21 August and 21 August 2010. Ms Kingsburra could not recall the second advance. The first advance contemplated payments in July and the second contemplated payments in August. Ms Kingsburra described these loans as "payday advances" which are to be paid off over four weeks and they are not regarded in any sense as long term loans: T, p 613, lns 11-15. 343 I have addressed a number of aspects of the cross-examination of Ms Kingsburra already. However, it is necessary to mention some further aspects of Ms Kingsburra's evidence given in cross-examination. 344 Ms Kingsburra gave evidence that when she went to buy the car, she did not understand finance and did not know she would be borrowing money. She thought she was "just paying the money in instalments for the car" and did not know that she was "actually borrowing from someone" because she thought she was just "paying [Colin] off money for the car": T, p 32-36. Ms Kingsburra agreed that at the time when she signed the Credit Contract, she had two existing loans: one was with GE Finance and the other with Cash Converters. The statement shows weekly debits made to "Cash Stock" of $5.00. Ms Kingsburra did not know whether that loan was almost paid off or not. Ms Kingsburra did not know whether the Credit Corp loan was almost paid out or not at 13 July 2010. Nor did she know what the loan was for. 345 Ms Kingsburra said that she was not aware that interest was payable on the money she had borrowed from Cash Stock or Credit Corp. She said that she had never looked at a loan contract in relation to either loan: T, p 617, lns 7-14. 346 Ms Kingsburra accepted that she had from time to time made a loan of some monies to friends without charging any interest. Ms Kingsburra recognised that there is a difference between a personal loan between friends where no interest is charged and a commercial loan where a person borrows from a finance company. She observed that "with business you've got to pay interest" but "when it's family and friends you don't pay interest": T p, 617, lns 21-28. 347 Nevertheless, Ms Kingsburra gave evidence that when she took out the Credit Contract to buy the vehicle, she was not aware that interest would be payable: T, p 617, lns 30-31. 348 In the course of her cross-examination, Ms Kingsburra was pressed quite a number of times with the same topics and she became confused about some matters having regard to the way the questions were framed. On one occasion, Ms Kingsburra asked if she could have a five minute break. She later suggested that she might need another break. On the second occasion, Ms Kingsburra said that she was "starting to get a bit stressed here" and, in context, Ms Kingsburra seemed to be giving truncated answers to simply try and bring the cross-examination to an end. Nevertheless, it was proper for Dr Spence to examine the topics about which questions were asked but it was a little unfortunate that Dr Spence kept coming back to those topics repeatedly in a way which was plainly causing Ms Kingsburra some distress causing her to simply try and bring the cross-examination to an end. Nevertheless, given the nature of the allegations, I extended some latitude to Dr Spence in his cross-examination. 349 On the important topic of Ms Kingsburra's evidence that she did not get a chance to read the Credit Contract before she signed it and that Mr Hulbert did not explain anything about it to her and simply turned the pages pointing to where she had to sign, Ms Kingsburra accepted that she had previously described the event as one in which Mr Hulbert had the contract facing towards her and, as Ms Kingsburra had described it, Mr Hulbert would say to her "this is blah blah blah" and "this is blah blah blah" but Ms Kingsburra could not recall Mr Hulbert going through the full details of the contract. Ms Kingsburra was pressed with the notion that in giving her affidavit version and oral evidence of the signing of the contract, she had forgotten that Mr Hulbert had said a number of things about the contract which she had described as "blah blah blah". Ms Kingsburra said that Mr Hulbert "wasn't specific on the contract" and added "like, he didn't explain the whole contract to me on the page": T, p 630, lns 10-26. Ms Kingsburra said she could remember (although the contrary was put to her) "because there was so much papers to sign and it was so quick": T, p 630, lns 28-29. Ms Kingsburra was asked why she thought it was so quick and said: "I know it was quick for that much paperwork to be signed". 350 It was put to Ms Kingsburra that her earlier reference to "blah blah blah" indicated that she did have a conversation with Mr Hulbert about the contents of the loan contract. She said, however, that when she went through the contract with ASIC, she did not know the things that were in the contract (T, p 630, lns 37-41) and thus in her view at least she was not told about the content of the contract. 351 At this point, Ms Kingsburra observed that she is not an educated person and that big words would need to be broken down so that she could understand the question. Ms Kingsburra was taken to her statement of 10 January 2012 given to ASIC. Ms Kingsburra said that at the time of giving that statement she could remember the earlier events ("like, from before") but she could not remember "like, up until now". It was suggested to Ms Kingsburra that her memory of things that occurred on 13 July 2010 was not very clear. She responded by saying: "Because my memory is not really too good. It comes and goes, you know". 352 Ms Kingsburra was then pressed with the notion that she did not have a clear memory of what happened in mid-July 2010, when she signed her initial statement on 10 January 2012. Ms Kingsburra was taken to an apparent inconsistency between her affidavit and the earlier statement of 10 January 2012 (the credit check point) but that matter was not pressed when it became clear that there was no inconsistency. 353 Ms Kingsburra was again then pressed with the suggestion that her memory was not very good, on 10 January 2012, concerning the events that happened on 13 July 2010. A sequence of exchanges occurred between Ms Kingsburra and Dr Spence on that topic which resulted in the witness becoming confused and, in fact, very, very confused: T, p 634, lns 15-44. 354 Dr Spence asked Ms Kingsburra a number of further questions. Ms Kingsburra asked Dr Spence to explain the questions a bit more slowly for her so that she might understand what was being asked of her. Dr Spence suggested to Ms Kingsburra that she had been given a chance to read the Credit Contract and that Mr Hulbert had said to her that she could read the contract if she wanted to. Ms Kingsburra said: "Well, like I said, I can't recall if I – if Colin ask me if I wanted to read it – [if] I've got a chance to read it": T, p 635, lns 25-28. Dr Spence asked: "so you do agree that he might have told you you could read the contract"? Ms Kingsburra answered: "he might have. I don't know. I can't recall": T, p 635, lns 30-31. 355 Ms Kingsburra said that Mr Hulbert did not explain the details of the contract: T, p 635, ln 37. 356 Dr Spence returned to the references to "this is blah blah blah" etcetera and suggested that Mr Hulbert was explaining the contract. Ms Kingsburra said that she did not know about [the content] but also said "well I can't remember": T, p 635, lns 39-44. 357 Ms Kingsburra was again pressed with the "blah blah blah" reference and was again pressed with the notion that this was an explanation of the content of the contract. She answered: "It could have been. But when I spoke to ASIC and they pointed out the contract, I didn't know what that was about" and although it was put to her that she had exercised a choice not to read the contract she answered: "Well, I don't recall being explained the contract": T, p 636, lns 4-5. 358 Ms Kingsburra was again pressed with the "blah blah blah" reference and the notion that Mr Hulbert was explaining the contents of the contract. Ms Kingsburra answered: "Well, I can't remember, like I'm saying": T, p 636, lns 13-15. Ms Kingsburra added: "I really know for a fact that he didn't explain each and every details on the contract to me": T, p 636, lns 18-19. 359 Ms Kingsburra also added, in answer to another proposition: "Well, I see what you mean. But [what] I'm saying is I didn't know that I was going to pay that [amount] – them things would stand out to me. Me buying a broker and this 48 per cent thing. I didn't know about them things – I still don't know today what they are" [emphasis added]: T, p 636, lns 24-27. Dr Spence put the proposition to Ms Kingsburra that those things would have stood out if she had taken the time to read the contract before signing it. She answered: "Well, I never had the time to sign it that day, [b]ecause I was too excited [about] getting this car. So quick and easy for my son": T, p 636, lns 33-35. 360 As to the signing, Ms Kingsburra was asked: "generally did you not see anything that was written on the pages of that contract when you were in the process of initialling the document?" She answered: "No I just kept initialling it": T, p 638, lns 37-39. As to obtaining legal advice, the proposition was put to Ms Kingsburra that Mr Hulbert did take her to the contents of page 9 containing Box A and Box B and said to her that she could get legal advice. Ms Kingsburra answered: "I can't remember that. He might have said it or done it, but I can't recall just now": T, p 639, lns 1-3. Ms Kingsburra accepted that Mr Hulbert could have told her that she could obtain legal advice although Ms Kingsburra could not remember: T, p 639, lns 5-9. At this point, Ms Kingsburra asked Dr Spence how many more questions he had for her and observed that she was "starting to get a bit stressed here". 361 As to the repayments, Ms Kingsburra rather thought that she did make 110 payments but was not sure and could not remember: T, p 639, lns 26-27. 362 Ms Kingsburra was taken back to the interest question and the suggestion was put to her that she knew that when she went to get the car she knew that she was going there to borrow money and that the borrowing involved the payment of interest. She answered: "Yes. I knew interest but I didn't know, like, how it works. I had heard of the word interest": T, p 639, lns 35-36. 363 Finally, Ms Kingsburra was asked in re-examination this: "if, when you signed the contract, you were told that you were going to pay back $13,134.00, do you think you would have remembered that". She answered: "I would have remembered that if I was told that". PART 7: the kingsburra documents 364 The documents relating to Ms Kingsburra's purchase of the car, her dealings with CBPL and her dealings with Channic generally reflect the methodology adopted by Supercheap, CBPL and Channic in their dealings with the consumers the subject of these proceedings. The content of the material is, of course, different in each case. I will illustrate the documents by reference to Ms Kingsburra's transaction and later address the position concerning each consumer. The documents in the case of each consumer are contained within the trial bundle. There is a CBPL file and a Channic Loan file. 365 As to the CBPL file, the position is this. 366 Ms Kingsburra attended the car yard on Tuesday, 6 July 2010. On 6 July 2010, Mr Humphreys, under the description "Credit Representative" for CBPL, produced a letter addressed to the "Credit Manager" of Channic in which he said this: Please find attached an application for Adele Dorothea Kingsburra 1) Completed Finance application 2) Signed Privacy Act Authority 3) Positive ID copies 4) Income verification Centrelink Statements 5) AHA preliminary assessment test completed Client was interviewed in person today, they requested a loan for $7,290.00 they have requested a repayment of approximately $119.45 per week, could you please advise the term of the loan and advise if approval can be issued. 367 The completed finance application is the document referred to as the "Credit Application Form". The signed "Privacy Act Authority" is a document described as the "AHA Finance" Privacy Policy. It is signed by Ms Kingsburra and dated 6 July 2010. The ID document is a copy of Ms Kingsburra's Driver's Licence and a "Converter's Finance" Card. The income verification Centrelink Statements are the Centrelink statement of 12 July 2010 and the Centrelink Community Housing Rental Payment Statement, obtained by Ms Kingsburra. 368 Tab 9, the "AHA Preliminary Assessment Test" is a document signed by Mr Humphreys. It bears the title Preliminary Test and also, at the top, the name Channic Pty Ltd. 369 It contains the following information: Channic Pty Ltd PRELIMINARY TEST Date: 6/07/2010 Client Name: Adele Dorothea Kingsburra Broker: Cash Brokers Pty Ltd Loan Purpose: Motor vehicle purchase 8990 Cash Deposit 1700 Capacity: Borrower 1 NET monthly income $3,298.49 Son board $325.00 Maintenance $0.00 total monthly income $3,623.49 Expenses Rent/Mortgage Deducted Safrock Loan $0.00 To Be Finalised Prior To Purchase Living expenses $2,925.00 Single $950; Married/De facto $1,300; Each child $325 Sper OSR $43.30 Centrelink Advance $55.51 GE Money $0.00 Finalised repayment this loan $520.00 total expenses $3,543.81 Surplus/Deficit $79.68 I confirm the information input in this assessment is accurate based on the information I have been provided K Humphreys Broker Signature 370 Mr Humphreys has signed the document next to the statement: "I confirm the information input in this assessment is accurate based on the information I have been provided". 371 The next document on the CBPL file is a letter from Channic addressed to CBPL dated 6 July 2010 in these terms: Dear Kevin Application Acknowledged/Credit Suitability Assessment for credit contract Kingsburra Please be advised the assessment we made to decide the credit contract referred to above was not unsuitable for the client/s. You will note we have contacted the client and made arrangement for signing of documents, an appointment has been made for the 06/08/2010. Please provide us with an invoice for your Brokerage Fees and a copy of the Contract from the Dealership for the vehicle purchased and being used as security. If you have any questions in relation to the assessment, please contact [details inserted]. Yours faithfully Colin William Hulbert Director/Credit Manager 372 The next document is an invoice from CBPL to Channic dated 6 July 2010 for brokerage fees of $990.00. 373 As to the Channic Loan file, the documents are these. 374 The file contains a copy of the letter from Mr Humphreys dated 6 July 2010; a copy of the Credit Application Form; a copy of each ID; a copy of the signed Privacy Policy Statement and a copy of the two Centrelink Statements. It also contains a copy of Mr Gilmartin's statement about rental and a copy of the CBPL Preliminary Test. 375 The file contains a document described as Credit Suitability Assessment. It says that it is made in accordance with ss 128 and 129 of the NCCP Act by Channic. It recites that it was made on 6 July 2010 and the period covered by the assessment is described as "from the date of this assessment until 06/08/2010". The document then sets out the details of the customer. 376 Under the heading Inquiries it says this (original emphasis): We made reasonable inquiries about the customer's financial situation and needs and objectives. The attached Loan Inquiry Checklist confirms the inquiries we made. We have also attached a copy of the loan application form. 377 Under the heading Verification, it says this (original emphasis): We then took reasonable steps to verify the consumer's financial situation. The attached Verification Checklist confirms the steps taken by us. 378 Under the hearing Customer's financial situation, it says this (original emphasis): Based on the information from our inquiries, which we have taken reasonable steps to verify and which we have reason to believe is true, we consider that the customer has available income as follows to repay the credit during the period covered by this assessment. This takes into account special circumstances (if any) listed below that we found when making our inquiries: Available income: $3,623.49 Per: Month 379 Under the heading, Customer's needs and objectives, it says this (original emphasis): After making reasonable inquiries about the customer's needs and objectives, we concluded that the customer is seeking credit with the following features: Amount of credit: $8,301.50 Timeframe for which credit is required: 110 Weeks Purpose for which credit is sought: Purchase Vehicle Particular product features: Daily Reducible We further concluded that the customer understands any costs or additional risks associated with any product features specified above. 380 Under the heading, Product offered, it says this (original emphasis): Amount of credit: $8,301.50 Type of loan: Secured Motor Vehicle Loan (Bill of Sale) Loan term: 110 Weeks Annual percentage rate: 48% per annum Security: Motor vehicle Other features: No early payout penalty 381 As to the assessment itself, the document says this: In our assessment, the product offered to the customer is not unsuitable for the customer as of the date of this assessment because: • we consider that the customer has capacity to repay the credit without substantial hardship during the period covered by the assessment, because the amount of loan repayments is within the amount of available income to the customer to repay the credit; and • we consider that the product offered meets the customer's needs and objectives during the period covered by the assessment, as determined by us after making reasonable inquiries. 382 The document is signed by Mr Hulbert as a Director of Channic. 383 The next document is the Loan Inquiry Checklist. 384 Part A recites the customer's details. Part B is concerned with the "Customer's financial situation". It consists of a series of boxes to be ticked, as appropriate, by reference to 12 topics. The document contains five other columns with boxes adjacent to each of the 12 topics and these boxes identify how the inquiry was made. The methods of inquiry are described as: How we made the inquiry Loan application form Personal interview Supporting documents from customer Contacting other people Searches … … … … … 385 Each of those five sources has a box under it with the words "via broker". It may be that in any relevant case, any one or more of those inquiries have been made by the broker. In Ms Kingsburra's case the Loan application form came to Channic from the broker. So too did the supporting documents from the customer. The inquiries ticked as having been done were these: Current amount and source of income or benefits Fixed expenses Variable expenses (and drivers of variable expenses) Credit history Liabilities, including nature and value 386 The fixed and variable expenses and liabilities were taken from the Loan application form. The current amount and source of income or benefits was drawn from the customer's supporting documents. 387 Part C deals with the topic of the "Customer's requirements and objectives". Part D contains a certification signed by Mr Hulbert. Part C has a series of boxes to be ticked if the relevant topic is addressed. In Ms Kingsburra's case, five topics were addressed and the document identifies what Channic found in doing so, as follows: Part C: Customer's requirements and objectives Done Requirement or objective What we found Amount of credit needed or maximum amount of credit sought Sufficient To Settle Purchase Timeframe for which credit is required Sufficient To Settle Loan The purpose for which the credit is sought and the benefit to the consumer Purchase Vehicle Particular product features or flexibility sought Direct Debit Customer understands the costs of these features and any additional risks Yes Part D: Certification I certify that I have made reasonable inquiries about the customer's financial situation and requirements and objectives, as described above. Hulbert Signature Print name: Colin William Hulbert Position: Director / Credit Manager Date: 06/07/2010 388 The date of the certification of the document is 6 July 2010. 389 The next Channic document is the Verification Checklist. 390 Part A sets out the customer's details. 391 Part B bears the heading "Verification". This Part consists of a matrix made up of: the sources of information used to verify information; a column for the details derived from those sources; a date upon which verification occurred; and, under the heading "What was verified from this source?", nine categories of possible information are identified. The categories of possible information that might be verified are these: What was verified from this source? Personal details Employment/other income source Other loans and payouts Income and expenses Credit history Assets and liabilities Personal circumstances Foreseeable changes Other factors … … … … … … … … … 392 Those categories are cross-referenced in the matrix to the sources of information used to identify information relating to those topics. The matrix recites 26 possible sources of information which might produce data relating to any one of the nine categories described at [391]. The various columns simply contain a box to be ticked. An example of Part B of the Verification Checklist can be seen in the Verification Checklist forming part of the documents at Schedule 1. 393 Part C consists of a certification signed by Mr Hulbert and dated 6 July 2010 in these terms: "I certify that I have taken reasonable steps to verify the customer's financial situation, as described above". 394 The next document on the Channic file is a copy of the Channic letter to CBPL dated 6 July 2010 quoted at [371] of these reasons. 395 The next document is the "Consumer Loan Contract and Mortgage No: 5030" otherwise described as the Credit Contract. Aspects of that contract are described earlier in these reasons. The information set out in the Financial Table on page 1 and other aspects of page 1 are set out at [291] and [292] of these reasons. Other information drawn from page 1 and financial information in the Schedule on page 2 is set out at [297] and [299] of these reasons. Other important parts of the document are described and quoted at [310] to [314]. 396 The next two documents on the Channic file are a copy of a VEDA individual consumer and commercial report concerning Ms Kingsburra's credit history, dated 6 July 2010 and a copy of the CBPL invoice to Channic for brokerage fees of $990.00 also dated 6 July 2010. The final document on the Channic file is a copy of an invoice from Supercheap to Ms Kingsburra dated 12 July 2010 for the sale of the car in a total amount of $8,990.00. That invoice does not recite the payment by Ms Kingsburra of a deposit. PART 8: the evidence of mr kevin humphreys 397 It is now necessary to consider the evidence given by Mr Humphreys. 398 Mr Humphreys appeared in response to a subpoena issued to him by ASIC. 399 Mr Humphreys gave his evidence by video link as he suffers from diabetes and other medical conditions which made it difficult for him to travel to Cairns, the place of the trial. Mr Humphreys was not taken to the detail of each of the transactions with those particular consumers, relevant to these proceedings, with whom he dealt. Rather, his evidence was directed to an explanation of the usual practices adopted by him in discharging the roles he performed in the period in which he was engaged by Supercheap and CBPL. 400 Mr Humphreys commenced working for Supercheap in approximately October 2009 and ceased doing so in February 2012. Prior to joining Supercheap, Mr Humphreys had worked in the mortgage broking industry. He also had a "caryard background": T, p 587, ln 25. 401 As to the consumers in issue in these proceedings, Mr Humphreys recalls Ms Donna Yeatman and Mr Farren Yeatman and has some recollection of conversations with them although "not entirely". He does not recall Ms Muriel Dabah. He recalls Ms Prunella Harris although he has no specific recollection of conversations with her. He recalls Ms Rhonda Brim although he has no specific recollection of conversations with her either. He recalls the name, Adele Kingsburra, although "not much about" her. He recalls Mr Vance Gordon although he has no specific recollection of conversations with him. He does not recall Charlotte Mudu, Karen Smith or Joan Noble although he thinks he recalls another person by the name of Noble. 402 The role of Mr Humphreys at Supercheap was to present the cars for sale, answer inquiries and show people the cars. Mr Humphreys was a salesperson not the manager. He received direction from Mr Hulbert. Mr Humphreys understood Mr Hulbert to be the "dealer principal" of Supercheap and as the "business proprietor": T, p 545, ln 42; T, p 546, lns 5-8. His role later became one of "discussing financial options as well": T, p 545, ln 30. 403 In working for Supercheap (and later, CBPL as well), Mr Humphreys worked from offices and premises at Mulgrave Street and then Spence Street. In the office, he and Mr Hulbert each had a desk reasonably close to each other although they had separate offices close to each other in the Spence Street premises. Although Mr Hulbert occasionally played golf, he was regularly at the office, Monday to Friday. 404 Mr Humphreys was paid, by Supercheap, on a commission basis only, of $300.00 for each car sold, although Mr Humphreys thought that the commission might possibly have been $400.00. He did not receive a wage. Later, he was also paid a finance commission by CBPL as well. He sold about 10 cars per month. In his additional role he also assisted people with finance applications. The majority of the sales were purchased using finance (T, p 547, ln 13) and perhaps as many as 80% of the sales were the subject of finance applications. 405 The prices for the cars were set in discussions with Mr Hulbert (and possibly some others). Ultimately however, the price was a decision for Mr Hulbert: T, p 547, lns 34-38; T, p 548, lns 5-9. Mr Humphreys could not recall any use of a "previous valuation sheet" in deriving the price of the cars: T, p 580, lns 35-37. Mr Humphreys normally asked Mr Hulbert (T, p 548, ln 35) what deposit was required. The deposit varied, in part according to the circumstances of the customer. 406 Mr Humphreys gave evidence that he was aware of and had seen documents described as PAMD Act Form 37a (the "cooling-off" period document); PAMD Act Form 38a-1 (Notice of Statutory Warranty); PAMD Act document "Contract to Buy a Motor Vehicle"; PAMD Act Form 38a-2 (Statutory Warranty Period); PAMD Act Form 63 (Title Guarantee); and PAMD Act document "Buyers Obligations under the Statutory Warranty". Mr Humphreys gave evidence that he understood that these documents were used in the purchase of a motor vehicle. However, it was not the role of Mr Humphreys to prepare these documents and he did not sign them for Supercheap: T, p 550, lns 9-10; lns 15-16; lns 23-24. Mr Humphreys could not recall whether any buyers of cars were offered an extended warranty although he said he was sure "Colin had them as well", like other car yards in Queensland: T, p 580, ln 46; T, p 581, lns 32-35. 407 Mr Humphreys explained that his initial role was to assist Supercheap in selling cars. However, Mr Hulbert "had a finance system that he operated from the dealership" (T, p 550, lns 33-34) and Mr Humphreys assisted in taking "applications for credit review": T, p 550, ln 34. 408 Mr Humphreys was a credit representative for CBPL, a company he understood to be a finance brokerage company, from 1 July 2010. His appointment ceased on 24 August 2012. 409 For every finance application that proceeded to settlement, Mr Humphreys was paid a commission of $100. Thus, Mr Humphreys was receiving $300.00 commission on each of approximately 10 car sales per month and $100.00 commission on "maybe" 80% of those sales resulting in a commission income of up to $3,800.00 per month. 410 Mr Humphreys cannot recall the documents CBPL required an applicant for finance to provide although the documents were concerned with proof of income, proof of expenditures, proof of residence and proof of identification. Mr Humphreys believes that he received instruction on the documents required to be gathered by CBPL. He thought there was a list of the required documents. Mr Humphreys recalled that Mr Hulbert used software either called, or supplied by, "Minute Software", for the preparation of finance contracts. This software was installed on the office computer. Mr Humphreys did not use it as he did not prepare the contracts. That was not his job: T, p 552, lns 41-47; T, p 553, ln 1. 411 Mr Humphreys was taken to the documents relating to the transactions with Mr William (Damien) Noble and Ms Joan Noble for the purpose of examining with him the process Mr Humphreys undertook for CBPL when dealing with a potential borrower purchasing a car. The questions put to Mr Humphreys were not designed to test Mr Humphreys about the particular content of the documents or conversations specific to these buyer/borrowers. The focus of the questions was the general practice, procedure and processes adopted by CBPL. 412 Mr Humphreys was taken to the Credit Application Form (already addressed in these reasons in the context of Ms Kingsburra's evidence). Mr Humphreys recognised the form. He did not draw it up, as a form. It was provided to him. He could not recall whether he was given any instructions on what was needed to be done to complete the form. He observed that there was "certainly no book that came with it". He could not recall whether it was filled out "as per follow bouncing ball" or not: T, p 553, lns 40-41. 413 The process he described was one in which the applicant borrower would sit at a desk and "as it looked like [in] this one [the example] the client would fill it in". If the client "needed assistance, I would fill it in". The client would sign it and the documents would be collected: T, p 553, lns 44-46. Mr Humphreys gave evidence that if he did fill the form in, he would do so, "probably in every case", in accordance with the information told to him by the client: T, p 582, lns 2-3. Mr Humphreys also gave evidence that every applicant was the subject of a "Veda" credit check "done by me" or "by some office staff": T, p 582, lns 10-14; ln 18. 414 In the example put to Mr Humphreys, the "Personal Details" section of the Credit Application Form (for Ms Joan Noble) shows income per month in the handwriting of Mr Humphreys of $2,954.31. The separate application form for Mr Damien Noble shows income per month of $918.66 in the handwriting of Mr Humphreys. The top of the separate form for Mr Noble shows a vehicle retail price of $10,990.00 and a buyer deposit of $3,000.00 in the handwriting of Mr Humphreys: T, p 554, lns 6-25. Each form is signed and dated 2 March 2011. The CBPL file contains a Centrelink statement dated 2 March 2011 addressed to Mr Damien Noble on which Mr Humphreys accepts that he has written $918.66 on page 1. The Centrelink statement shows a Newstart allowance of $415.86 and a GST component of $8.14. Mr Humphreys says that he cannot remember whether he was given any instructions on what to do with figures recorded in such an income statement and he cannot recall how the figure of $918.66 came about. 415 The Centrelink statement for Ms Joan Noble shows on page 1 an amount of $2,954.31 in the handwriting (he accepts) of Mr Humphreys. It also shows on page 2 deductions made by Centrelink from the recipients benefits, of $100 and $71.50. 416 Mr Humphreys says that he cannot be sure whether he was given any instructions about what he needed to do with deductions shown on such a statement although he assumed that those items would need to be brought into the expenses of the applicant borrower. 417 As earlier discussed, page 2 of the Credit Application Form has a box for inserting "Financial Information". As to the process of filling out this part of the form, Mr Humphreys thought that in the example before him (Tab 3, the form concerning Ms Joan Noble), the applicant had filled it out. The information provided is this: "any known Credit Defaults? – "No."; "Credit Card(s) – $110.00" (per week); "Food – $200" (per week); "Personal Loan(s) – C.B.A. – $54.80 per M". The change from per week to per M is a reference to "per month". Mr Humphreys thought that these figures "should have been checked and totalled off": T, p 555, lns 38-39. 418 Mr Humphreys says that the information in answer to the question: "do you have any known Credit Defaults" (line 1 of the Financial Information box) came from "just simply asking the client" although in the case of Ms Joan Noble before him, Mr Humphreys thought that the applicant had "probably answered the question". 419 In the example of Ms Joan Noble, other lines in the Financial Information box are left blank: "Rent/Mortgage; Phone (H)/Mobile; Vehicle Expenses; Utilities; Child Support; Other; Total". Mr Humphreys says that he thinks he was not required to complete every line in the Financial Information box because "there was an amount that was allowed for a living allowance which would have taken out some of those amounts": T, p 556, lns 6-10. 420 As to whether Mr Humphreys received any instructions about what he "needed to do to fill out" the Financial Information box on the form, Mr Humphreys thought that the "people at Minute" had given Mr Hulbert information on the living expenses that "were allowed", that is, a set amount to cover living expenses. As to the expenses of the applicant on "Utilities" (electricity, gas, water and such matters) Mr Humphreys was asked whether he was required to obtain documents from an applicant about those expenses. He thought that "there was an amount to cover living expenses which included utilities": T, p 556, lns 7-10; lns 21-22. Mr Humphreys thought that there was "some other figure" which would incorporate "those things": T, p 556, lns 24-25. 421 Page 3 of each Credit Application Form contains a statement: Vehicle Insurance Please tick the following box if you would like a trained insurance professional to provide you with a competitive quote; [box]. 422 Mr Humphreys gave evidence that it was requirement of Channic (T, p 557, lns 1-2) to have the vehicle insured although he never really discussed insurance with the customer as he is not a qualified insurance consultant. He thinks that insurance was organised with the customer when the vehicle was picked up. His understanding came from Mr Hulbert: T, p 557, lns 4-5. 423 Page 3 of the form has a heading: "Supporting Documents (if applicable)" followed by a list of documents with an adjacent box to be ticked. In the example before Mr Humphreys (Ms Joan Noble) two boxes are ticked adjacent to: "Photocopy of Driver's Licence (front and back)"; "Photocopy of Centrelink income statement". Mr Humphreys was asked whether there was a minimum requirement for the documents that he was required to provide in support of an application. Mr Humphreys thought that the ticked boxes reflected the documents the applicant may have had with them at the time of the application and there may have been requests for the production of other documents that they didn't have with them "at the time of this sitting" and "quite often clients used to come back with more paperwork": T, p 557, lns 12-18. 424 Mr Humphreys was asked whether he "ever received" bank statements from clients. He said that he was "fairly sure" that he did. 425 As to whether he was given any instructions about what he needed to do with bank statements, Mr Humphreys gave evidence that the "process was to identify any deductions out of bank accounts, and any income coming into bank accounts": T, p 558, lns 11-12. Mr Humphreys says that he does not remember "exact instructions" but thinks that this "would have been part of the process of taking the information": T, p 558, lns 28-30. 426 Mr Humphreys was taken to the bank statement for Ms Brim (at Vol 11, Tab 23, ASIC trial bundle) which shows multiple Centrelink benefits paid into the account and a pattern of immediate withdrawals of those amounts resulting in debit balances. Mr Humphreys recalled engaging with Ms Brim: T, p 583, ln 18. 427 As to that pattern of Centrelink money in, and then all Centrelink money out, within the course of a day, Mr Humphreys was asked whether he had observed that pattern with clients of CBPL. Mr Humphreys could not recall observing such a pattern. He accepted that he could see amounts as cash withdrawals but could not say that he had observed a pattern of such behaviour with clients of CBPL, although he could not remember: T, p 559, lns 12-14. 428 Mr Humphreys thinks that he did not receive any instructions "about looking for that pattern": T, p 559, lns 20-22. 429 Mr Humphreys was taken to the Preliminary Test document in the CBPL file records for Mr Noble and Ms Noble (Vol 9, Tab 8). 430 Mr Humphreys recognised the document and identified his signature on it for the broker. As to the usual practice concerning how this document was used, Mr Humphreys gave evidence that, "from what he could remember", the income was put into the document. The Preliminary Test document was a calculator which had "some sort of built-in formula" such that information concerning income and expenses would be entered and then "at the bottom it would illustrate whether they have a surplus or deficit according to this form": T, p 560, lns 8-12. 431 The income seems to have been taken from the credit application forms of $918.66 and $2,954.31 (in the example in question). 432 The expenses column identifies seven categories of expenses and then a monthly amount for "repayment of this loan". As to the "living expenses" category, the entry in the case of Mr Noble and Ms Noble is: $2,925.00 Single $950; Married/De facto $1,300 Each child $325. 433 Mr Humphreys was asked what that entry meant and he said this at T, p 560, lns 30-35: I don't know where it came from. It was supplied to Colin Hulbert from somebody in the industry or the software company or somebody, but, to me, my opinion right now, today, it represents what a single person would need to live on, what a married or de facto person would need, and then each child would be an additional amount. If they had two children it would be twice times $325. 434 Mr Humphreys accepted that he would need to find out how many children an applicant had and that the figure of $2,925.00 was derived from using the figures set out next to that amount "in a formula of some sort". 435 Mr Humphreys did not write the formula: T, p 560, lns 40-45. 436 As to whether Mr Humphreys received any instructions about how to operate the formula, Mr Humphreys gave evidence that he believed the formula was in the calculator although he could not remember whether it was "in the calculator, or calculated based on information that was given by a customer": T, p 561, lns 5-6. Mr Humphreys gave evidence that he did not know whether this same calculator was used by Channic when it made its assessment: T, p 583, lns 42-44. Mr Humphreys recognised that the Preliminary Test has Channic's name at the top of it. However, he gave evidence that it was a form used by CBPL and signed by him. Mr Humphreys suspected that "Colin may have used the same form … because he would have had to arrive at the same answers, I would imagine: T, p 584, lns 13-15. 437 In this example of the Preliminary Test, there is an entry to this effect: "Repayment this loan $400.00". Mr Humphreys was asked how the repayment calculation was made. He said he could not remember. However, he thought that there was "another screen that worked out the price of the car less the deposit" and it may have been within "this calculator" although there may have been "another calculator" which "worked it out". Mr Humphreys thought that "sometimes the client would specify what they felt they wanted to pay" and the time over which the repayments would be made: T, p 561, lns 15-23. 438 Mr Humphreys accepted that the interest rate would have "some bearing on the repayments" and that the interest rate was 48%. 439 Mr Humphreys thought that that rate was "set into the calculator" although he could not remember the function of the calculator. Mr Humphreys could not "ever remember calculating and punching in an interest rate to bring up this figure": T, p 561, lns 32-33. 440 Mr Humphreys was asked whether it was his "usual practice" to discuss the interest rate with the client to which he said (at T, p 561, lns 36-39): I'm not sure. I think I discussed payment, term and interest rate, but I couldn't tell you exactly. I don't know whether we just gave them a copy of this [the Preliminary Test] – I mean, I am talking three, four years ago. 441 The Preliminary Test has an entry: "Surplus/Deficit" and in the example concerning Mr Noble and Ms Noble the Test shows a surplus of $16.51. Mr Humphreys gave evidence that his recollection was that if all the expenses, including the living expenses, were taken into account and the test showed a surplus, then the application was "worthy to send to the finance company", by which Mr Humphreys said he meant, Channic. Mr Humphreys gave evidence that the Surplus/Deficit line "had to be positive, not negative, to be worthy to send it through for assessment" [emphasis added] to Channic, and by positive, Mr Humphreys meant, "more than zero": T, p 562, lns 12-23. 442 Dr Spence put a proposition to Mr Humphreys that notwithstanding the use of the calculator, he still had a discretion as to whether he would refer a loan application to Channic. Mr Humphreys gave evidence that because "[i]t was a very small office … Colin and I did have conversation[s] as well as documentation [sic]" (T, p 585, lns 19-24), and thus it was difficult for Mr Humphreys to answer the question. 443 In answer to Dr Spence's proposition that the result derived from the calculator/formula was not necessarily decisive of whether a loan application would be referred to Channic, Mr Humphreys said this (at T, p 584, lns 36-38): It was too long ago for me to make a statement to say that there was a variation in my thoughts when I looked at these applications … Colin was very close in the office to me, and there was quite often conversation and discussion. ... I wouldn't agree or deny your question. I would just – simply ... say I'm not sure. 444 As to the term "worthy", Mr Humphreys said this (at T, p 585, lns 10-12): I'm fairly sure [that] if there was a – a surplus amount, then it … would have been one of the criteria to move to the next stop. If there was a negative amount, I don't think it would move further. 445 Mr Humphreys was then taken to the example of the letter from CBPL to Channic making an application for a loan and attaching five identified documents. The five documents are precisely the same documents recited in the letter from Mr Humphreys to Channic dated 6 July 2010 on behalf of Ms Kingsburra: see [371] of these reasons. The amounts in the second paragraph, of course, differ. The letter in the Noble example (and Kingsburra) is signed by Mr Humphreys. 446 Mr Humphreys recognised the letter and his signature. He described the letter as "a template". He said that "we would change the name and the relative figures to the relevant customer and attach it to a submission". Mr Humphreys recalled "filling in" these letters. He could not recall whether the template was provided to him. The practice was to attach the five nominated documents to the letter. 447 In the case of the Noble letter, the loan sought was $7,990.00. Mr Humphreys said that it made "mathematical sense" to him that they were seeking a loan in that amount as the price of the car was $10,990.00 and the deposit was $3,000.00. 448 Mr Humphreys accepted that the second office out of which Supercheap, CBPL and Channic operated was small. Mr Humphreys and Mr Hulbert were thus close at hand to each other. Mr Humphreys could not recall whether this formal process of writing a loan application letter to Channic was something he was told to do or whether he chose to do it or whether it was part of a manual to be complied with: T, p 563, lns 1-3; lns 7-8; lns 40-42. 449 Mr Humphreys was then taken to the CBPL documents relating to Ms Donna Yeatman and Mr Farren Yeatman as a further example of the method adopted by CBPL at least as Mr Humphreys might recall it. 450 The Credit Application Form for Mrs Yeatman records, in handwriting which is not that of Mr Humphreys, that her current employer is the Yarrabah Council; her employment term with the Council is 12 months; her occupation is a "Care Assistant" and that her income is $711.00 per fortnight. In the case of Mr Farren Yeatman, Mrs Yeatman's husband, the Credit Application Form records, in handwriting which is not that of Mr Humphreys, that Mr Yeatman's occupation is a Manager Night-Watchman; his current employer is a Substance Abuse Centre; his employment term with that employer is four years; and his income is $1,600.00 per fortnight. 451 Mr Humphreys was then taken to the template loan application letter to Channic (signed by him) which records the five standard attachments. In the case of the Yeatman letter, the document at Item 4 ("Income Verification by Centre link statement") has a handwritten note (which is in the handwriting of Mr Humphreys) next to it, "not supplied". In the case of the Yeatmans, there was no other document identifying their income in support of the two income amounts written on each Credit Application Form. Having regard to those circumstances, Mr Humphreys was asked whether he had received instructions from Mr Hulbert about how to proceed in submitting (or not) an application to Channic for assessment where there was no documented support for the income. 452 Mr Humphreys said that he could not remember specifically any instructions but he rather thought that the point of his writing "not supplied" on the Yeatmans' application letter was to alert Mr Hulbert to the circumstance that he would need to verify the amount by phone or in some way. The note was an alert that an income statement was not supplied and therefore the income would need to be verified, although, Mr Humphreys said, not by him. 453 Mr Humphreys gave evidence that his usual practice was that once the template loan application letter was done and the available documents attached to it, the letter was then given to Mr Hulbert: T, p 565, lns 32-33. 454 Mr Humphreys does not know, specifically, what Mr Hulbert did with the documents. Mr Humphreys speculated in evidence that Mr Hulbert would probably go through them "with a mind of looking at the creditworthiness of the applicant: T, p 565, lns 37-38. Mr Humphreys did not regard it as part of his role to carry out that assessment: T, p 565, lns 41-45. Mr Humphreys was asked whether it was part of his role to carry out a creditworthiness assessment for Channic. Mr Humphreys responded: "No. I don't believe I operated for Channic. I believe I collected data and information" (T, p 566, lns 17-19). Mr Humphreys was asked whether it was part of his role at CBPL to verify the clients' statements about income and expenses. He said: "I don't think it was my duty, but I think that I did collect the data that verified it" (T, p 572, lns 39-40). 455 That topic was further examined by counsel for ASIC in this way (T, p 572, lns 42-47; T, p 573, ln 1): Q. Okay. So you saw your role as collecting the data? A. Yes. I don't think it was my duty to do that, but I think it was – I did collect data that would verify that, if that makes sense. Q. Do you see it as part of your role to carry out your own verifications of that data? A. I can't remember that … My feeling is to say yes, but I would only be speculating. [emphasis added] 456 Dr Spence, in cross-examination, pursued this topic in the following exchange (T, p 585, lns 27-30): Q. Do you remember that part of your role was not only to make a preliminary assessment as to an applicant's suitability for a loan, but also to verify the information they … gave you in support of their application? A. No. I don't remember that. I'm sorry. I – it would sound logical to me. [emphasis added] 457 Mr Humphreys was taken to an example of a Credit Suitability Assessment document of Channic drawn up for the purposes of ss 128 and 129 of the NCCP Act (the example from the Noble Channic documents, Vol 9, Tab 21). Mr Humphreys gave evidence that he did not specifically recognise that document or documents of that kind. When asked whether it was part of his role to complete this sort of document, he said: "I don't think so but – again I don't know" (T, p 567, ln 21). 458 Mr Humphreys was then taken to an example of Channic's Loan Inquiry Checklist (Vol 9, Tab 22, Noble). Mr Humphreys was asked whether it was part of his role to complete the document for Channic. Mr Humphreys gave evidence that he did not recognise the document or the type of document. 459 Mr Humphreys had the same answer when taken to an example of Channic's Verification Checklist (Vol 9, Tab 23, Noble). When asked again whether this was a type of document that he was required to complete as part of his role, Mr Humphreys said that "there were some documents, but I don't remember this specific [one – the Verification Checklist] or the other one[s] you asked me to look at" (T, p 567, lns 46-47). 460 As to the example of the Channic assessment letter (Vol 9, Tab 24, Noble – an example of which is set out at [371] of these reasons in case of Ms Kingsburra) in response to the CBPL loan application letter, Mr Humphreys gave evidence that the usual practice was that the letter from Mr Hulbert was "a formality" because there were "discussions [and] Colin would simply say that, you know, the loan is okay. I think this – was just a formality": T, p 568, lns 16-18. 461 Mr Humphreys was then taken to an example of the Channic Credit Contract (Vol 9, Tab 25, Noble). Mr Humphreys gave evidence that he recognised this type of Channic document. He gave evidence that these document were prepared by someone in the office. He thought that the software programme generated the document. He said he did not believe it was a document that he ever "generated at all" and nor was it part of his role to present the document to clients: T, p 568, lns 35-37; lns 39-40. Mr Humphreys was taken to the "Financial Table" in the Noble example before him of the credit contract which recites the "[a]mount of credit of the loan" as $8,561.50, notwithstanding that Mr Humphreys' CBPL loan application letter for the Nobles, seeks a loan of $7,990.00 being the balance of the car purchase price after payment of a $3,000.00 deposit. Mr Humphreys accepted that the difference between the two amounts was represented by a brokerage fee of $550.00 payable to CBPL and a loan establishment fee charged by Channic of $21.50 as set out in the Schedule at the top of page 2 to the contract. 462 Mr Humphreys was then taken to the CBPL brokerage fee invoice to Channic (Vol 9, Tab 27, Noble) of $550.00. Mr Humphreys gave evidence that he recognised this type of document. He said it was a type of document that he prepared. As to whether the brokerage fee was always $550.00 during his period at CBPL, Mr Humphreys thought it might have been $500.00 "but $550 rings a bell with me": T, p 570, lns 24-25. Mr Humphreys gave evidence that he did not decide how much the brokerage fee would be. That was a matter decided by Mr Hulbert: T, p 570, lns 27-36. Mr Humphreys was then asked: "so in your role at Cash Brokers was it your usual practice to tell the client about the amount of the brokerage fee?" He responded (T, p 570, lns 39-41): I think it was Mr Seefeld. Yes. I can't – can't remember this client. In general, I'm pretty sure it was. I'm sure that was – would have been my role, considering I had the client in front of me. [emphasis added] 463 Mr Humphreys was then asked whether it was also his usual practice to tell the client that the brokerage fee "would be added on to their loan". He answered: "I would imagine so. Yes." [emphasis added] (T, p 570, lns 43-44). This topic was further explored by counsel for ASIC in this way (T, p 571, lns 1-14): Q. So you say you would imagine so. Do you specifically recall that? A. I don't specifically recall that. I'm just saying logic would tell me that it would be my role and … Q. Did you receive instructions about what you needed to do? A. Again, I would imagine so. I wouldn't have just [decided] what had to happen. Yes. I would imagine that, you know, it would have been an amount that was decided in the office and it was my role, sitting in front of the person, to tell the client. Logic would tell me that. Q. Can you please explain …? A. If the client was … Q. Sorry. Go on. I cut you off? A. No. I was just going to say – if I was sitting in front of the client, I would imagine I would be the only person that was able to tell them that. [emphasis added] 464 Dr Spence, in cross-examination, explored this topic further in the following exchange (T, p 585, lns 35-46): Q. When you were working for Cash Brokers, was it the case that you generally advised [the] applicant that your employer was a brokerage firm? A. I don't think I could confirm or deny that. I think in the initial stages of meeting and greeting a customer, I represented SuperCheap Autos, until they, perhaps, picked a car. And then I am fairly sure I would have said to them that I could assist them with credit also ... …I think that was the process. Q. Did you generally advise loan applicants that there was a fee for brokerage involved in their obtaining a loan? A. During the process of an application, I'm fairly sure – and I can't swear under oath, because I just don't absolutely 100 per cent remember, but I'm fairly sure that that point was raised with clients. [emphasis added] 465 As to the amount of the brokerage fee, Dr Spence asked Mr Humphreys whether he would agree that the brokerage fee had been reduced from $990.00 to $500.00. Mr Humphreys thought it had been reduced from that amount to an amount "around the $500 to $550 mark". 466 Mr Humphreys gave evidence that in his period at CBPL he did endeavour, on occasions, to arrange a loan for a client from a lender other than Channic. He said that there was another brokerage firm that Mr Hulbert dealt with. Mr Humphreys could not remember the name of the other finance brokerage company that he dealt with. He recalls that he faxed applications to that company. He could not recall how many times he attempted to arrange finance from another financier. He could not recall whether any such applications were successful. Mr Humphreys was asked to explain what guided his usual practice when deciding whether to apply to Channic or another financier, for a client. He answered (T, p 571, lns 37-40): I don't remember what was the dividing factor. If I was to sit here now and think about why I would do that – I guess different finance companies would have different guidelines. I don't remember the dividing factor … . 467 Mr Humphreys was asked whether it was ever the case that he had applied to financiers other than Channic for clients who were "only on Centrelink benefits". Mr Humphreys said: "I don't think so, but I think one of the other finance companies – who I can't recall – did take family allowance into account, but I'm not sure if they took Newstart. But I'm not sure" (T, p 572, lns 21-23). 468 Mr Humphreys was then taken to a series of CBPL documents all dated 14 November 2010 which is a date that falls within the period of Mr Humphreys's employment with CBPL (1 July 2010 to 24 August 2012). 469 The first document is entitled Representatives Policies and Procedures (Vol 22, Tab 5). The document recites at cl 1 that its purpose is to set out CBPL's policy and procedures in relation to the appointment, supervision, training and competence of its representatives. Mr Humphreys gave evidence that he had no specific recollection of receiving the document (T, p 573, lns 24-25). 470 The second document is entitled Loan Inquiry Checklist. The document recites at cl 1 that its purpose is to provide a form that confirms "we made reasonable inquiries about a loan applicant's financial situation and requirements and objectives". The document attaches at Appendix 1 a "Loan Inquiry Checklist" which recites that the checklist is to confirm that CBPL has "made reasonable inquiries about the financial situation and requirements and objectives of the customer referred to below" in connection, relevantly, with an application for credit by the customer. The checklist contains a table earlier described in these reasons at [384] and [387]. Mr Humphreys gave evidence that he thought that he did use this document in his role at CBPL. He could not remember whether he received any instructions about how to use the document (T, p 574, lns 2-4; lns 6-7). 471 The third document is entitled Verification Checklist (Vol 22, Tab 13). The document recites at cl 1 that its purpose is to provide a form that confirms "we have taken reasonable steps to verify a loan applicant's financial situation". The document attaches at Appendix 1 a Verification Checklist and recites that the checklist is to confirm that CBPL "has taken reasonable steps to verify the financial situation of the customer referred to below" in connection with, relevantly, an application for credit by the customer. Mr Humphreys gave evidence that he thought he did use this form in his role at CBPL although he could not remember the form specifically (T, p 574, lns 26-27). 472 The fourth document is entitled Suitability Assessment Form (Vol 22, Tab 14). The document recites at cl 1 that its purpose is to provide a form "that can be used to conduct an assessment of suitability of credit for a customer, and to provide to the customer on request". The document attaches at Appendix 1 a Credit Suitability Assessment and recites: "This is a credit suitability assessment made in accordance with sections 115 and 116 of the [NCCP Act] by [CBPL]". Mr Humphreys gave evidence that he thought that in his role at CBPL he did use this form. 473 On the topic of whether Mr Humphreys in his role at CBPL had assisted clients of CBPL to obtain finance from a lender other than Channic, Mr Humphreys was taken to an answer he gave in the course of an examination by ASIC officers (Ms Egan and Mr Saad) on 11 January 2012 (Vol 25, Tab 4; T, p 36 ln 9) in these terms to a question at lns 5-8: Q. Just thinking back let's say to 1 July 2010, could you tell me how many people you've assisted in arranging finance through GE Money or Esanda or a similar company? A. Look, there wouldn't be anybody, I would imagine. 474 Having been taken to that answer, Mr Humphreys was asked: "… it's true, isn't it, that there was not a single successful application to another credit provider that you arranged while you were at Cash Brokers?" Mr Humphreys responded: "I couldn't say that was correct. I can't remember if that was true" (T, p 576, lns 5-6). Mr Humphreys was again taken to the reference "GE Money or Esanda or a similar company" and his response that there would not have been anybody that he would have assisted with such entities, he imagined, and added: "I don't remember saying that, to be honest, but – I don't know the answer to your question" (T, p 576, lns 24-25). Mr Humphreys also added this (T, p 576, lns 35-40): I don't remember saying Esanda. I would have thought GE Money would have loaned to – some customers. I don't remember specific applications or clientele but I do remember there was one broker that loans were submitted to. Can't think of their name. I don't remember making this statement is my problem, in those exact words. 475 The answer given by Mr Humphreys at ln 9 was the subject of immediate expansion at lns 11-25 in which he says that some buyers paid cash to settle a sale and in respect of some of those buyers Mr Humphreys said in his expanded answer that he thinks he may have suggested to them to go and talk to their own bank. 476 Leaving aside cash buyers who by definition did not need finance from or through CBPL, Mr Humphreys's recollection on 1 January 2012 seems to have been that he imagined (that is thought) that there would not have been any people assisted by him in arranging finance with GE Money, Esanda or a similar company in his period with CBPL stretching back to 1 July 2010. 477 Mr Humphreys gave evidence that he was not aware that virtually all of the buyers of motor vehicles involved in the present proceedings are indigenous people who live at Yarrabah. Mr Humphreys gave evidence that it was not uncommon for applicants for loans to say that they had found out about Supercheap because other loan applicants had referred them to Supercheap. 478 Mr Humphreys also gave evidence that "quite a lot" of the applications for loans were not referred by him to Channic and Mr Hulbert. Mr Humphreys thought that "Colin would have a draw full of cancelled applications". He said that, definitely, "not everybody got [a] loan approved" and the ratio of approval to rejection may have been 50/50 or 60/40. It is not entirely clear from this answer whether Mr Humphreys was not sending on these applications to Mr Hulbert or whether the applications showed a positive surplus yet Mr Hulbert was not approving them. Mr Humphreys was not able to comment, from his own knowledge, on the factors which might have led to a rejection of an application because he "didn't make those decisions": T p 587, lns 2-3. However, this notion that Mr Hulbert may have kept cancelled applications was entirely a theory on the part of Mr Humphreys based upon an assumption: T, p 591, lns 1-3. The respondents were unable to produce any such documents when called upon to do so. 479 Counsel for ASIC sought to clarify the ambiguity inherent in Mr Humphreys' earlier answer concerning the rejection of applications in the ratio 50/50 or 60/40 by this exchange (T, p 591, lns 27-45): Q. Now, I want to be clear here. Were you talking about Cash Brokers – i.e. applications that you didn't even bother to send through to Mr Hulbert for Channic because they weren't going to be approved – or were you talking about finance applications which were rejected by Channic, ultimately? A. Can – Mr Seefeld, can I just answer by saying that there would have been a percentage that didn't have a surplus – that, I guess, "rejected" would be a bad word – but I probably wouldn't have sent them through to Channic. And I would imagine there would be a percentage that Channic had rejected off their own steam because they didn't want to do the business. But the ones I was talking about – [were the] ones that didn't, I guess, have a surplus on their – on the calculator, I think. And ... I think that's what I'm trying to say, Mr Seefeld. Q. And just to be clear, by "surplus", do you mean that number at the bottom of the preliminary test, ... [where, if the number is more than zero it's a surplus]? A. Yes. That's what I was referring to when I commented. But, as I said, I would imagine there would be some [applications] on the other side of the fence that you referred to that were declined by Channic as well – I would imagine. [emphasis added] 480 As to the steps that were taken to ensure that a car was roadworthy before it was on-sold by Supercheap, Mr Humphreys gave this evidence of the process (T, p 588, lns 1-10): This is my understanding of what happened. ... Colin would buy a car. It would go into his workshop. He had ... maybe two mechanics at any one time. ... I think those mechanics would give Colin a report, and sometimes verbalise things that were wrong with [the] cars. Those cars were attended to. Colin had a very good skill of running around getting parts. And … the roadworthy process was done independently [of] that workshop. I was sometimes involved in driving a car somewhere and picking the car up, or picking up a part when I was driving somewhere else. 481 As to the two sites and office locations for Supercheap, CBPL and Channic, Mr Humphreys gave evidence that the two locations (Mulgrave Road and Spence Street) had "a very different layout". At Mulgrave Road, the workshop was on-site. The office was "very open plan". Mr Hulbert's desk was in the open plan office and Mr Humphreys felt that he "could have hit him with a paperclip". In the Spence Street office, Mr Hulbert was in a separate office behind a wall with something like a one-way mirror so he could see out. If the door was open, he would quite often yell around the corner and Mr Humphreys would also be able to yell around the corner. Occasionally, Mr Humphreys saw Mr Hulbert in his office speaking to customers. Most of the customers who came into the car yard would have approached Mr Humphreys to purchase a car in the first instance. Mr Hulbert would have dealt with them, from Channic's point of view, in the second instance on another occasion. 482 As to the Credit Contract type of document, Mr Humphreys gave evidence that on every occasion, except one (when Mr Hulbert possibly had a medical appointment), Mr Hulbert spoke to the loan applicant about the signing of the contract. As to whether Mr Humphreys overheard conversations between Mr Hulbert and the purchaser of the car concerning the signing activities, Mr Humphreys gave evidence that "most of the time Colin would come into the main office to execute those documents". He added: "I don't remember a lot of detail, but Colin would spend a fair amount of time with those people and – I don't remember detail. I'm sorry": T, p 589, lns 22-31. 483 When asked to elaborate upon the notion that Mr Hulbert would spend a fair amount of time with the applicant buyer, Mr Humphreys said this (T, p 589, lns 34-36): It would be complete speculation, but I would say – I could be wrong – I could be totally wrong – but I would say it would generally take somewhere between half an hour to an hour. 484 The qualifications upon that answer essentially reduced the answer to zero in terms of probative value. That caused the Court to ask Mr Humphreys this: "Mr Humphreys, have you got any actual recollection of that or it just something that you are speculating about ..." … He answered (T, p 589, lns 43-46): No. I couldn't give specific times, your Honour. But, to me, it seemed to take a while. But I couldn't quote time in terms of 30 minutes – half an hour – 40 minutes – 45 – I couldn't be exactly – but it did seem to take a while. 485 It is now necessary to consider the evidence of each of the other consumers concerning their individual transactions and then consider the evidence of Mr Hulbert. I will consider the evidence of the consumers in the order in which they gave evidence. PART 9: THE EVIDENCE OF MS PRUNELLA KATHLEEN HARRIS 486 Ms Harris gave a statement to ASIC dated 29 November 2011. She also swore an affidavit in the proceeding on 17 June 2014. Her earlier statement is Tab 1 of Ex PKH-1 to her affidavit. 487 Ms Harris was born on 30 March 1977. She was 33 years of age when she first engaged with Supercheap and Channic (and possibly CBPL). Ms Harris completed secondary schooling in 1992 after reaching Year 10. After leaving school she completed a First Aid course sometime after 2010; a course on construction in 2010; a course on chemicals in 2010 and a literary and numeracy course in 2010 at the Training Centre at Yarrabah. Ms Harris also completed a two week training course in Hospitality in 2010. In 2011 and 2012, she completed a course called "Introduction to Technology" in Yarrabah at the Training Centre with "Skill Choice Australia". Ms Harris has also undertaken a course, part time, in child safety, day care and working with children. In about late August or early September 2010, Ms Harris worked as a landscaper and housekeeper at the resort on Fitzroy Island on a casual basis, "week on, week off". She was paid casual hourly rates for her week on and nothing for the week off. She says she earned an income for the "week on", depending upon the number of hours worked, of approximately $500: T, p 284, lns 20-47; para 11 of her affidavit. Ms Harris can read and write English well. She is single. 488 In September 2010, Ms Harris lived with her seven children then aged 3, 4, 5, 9, 12, 14 and 16. At para 9 of her affidavit she says that she was also a carer for her mother who lived with her. Her brother also lived with her. In 2010, all of her children were financially dependent on her. Ms Harris lives at Yarrabah in Aboriginal Community Housing and has lived there almost all of her life. She rents her home within the Yarrabah community. 489 In her affidavit evidence, Ms Harris says that she heard about Supercheap in early September 2010 or so, through her "cousin-brother" (who is her cousin), Mr Hilary Harris. I will refer to Mr Harris as Hilary, as Ms Harris did in the course of her evidence. He mentioned Supercheap to her and said he would accompany her to the car yard to have a look at cars. Ms Harris wanted to buy a "bigger car" than the car she already owned. She wanted a car capable of carrying her whole family. Hilary said that he would take Ms Harris to see "a fellow named Colin" who could "probably help her with the finance for a bigger car": T, p 210, lns 45-47. Hilary had previously purchased a green V6 Commodore from Supercheap. He too had problems with that vehicle. 490 Ms Harris says that on 10 September 2010, she, with Hilary, went to Supercheap. Hilary "ended up having a yarn to Colin in the office" and Ms Harris had a look at the cars. She then went inside and spoke with Colin about getting a car on finance: T, p 211, lns 6-9. I will continue to use the description "Colin" as used by Ms Harris in the course of her evidence. 491 In examining Ms Harris's evidence, it is also important to note that the essential propositions put to her in cross-examination by Dr Spence were that on her first visit to Supercheap, Ms Harris actually met with Mr Humphreys rather than Mr Hulbert; Ms Harris is confused and has a poor recollection of what occurred on her visits to Supercheap and when they occurred; she was in a hurry and chose not to read any of the documents; Mr Hulbert spent some time explaining the contents of the documents; and an examination of her Centrelink statement and the relevant bank statement shows considerable income in addition to her other earnings in the relevant period and thus a capacity to service the Channic Credit Contract. 492 A number of these propositions were put to her many times over: T, p 283, lns 14-18. She plainly became distressed and, ultimately, confused about some things. It fell to the Court to ask Ms Harris questions about the sequence of events. It will be necessary to examine some of these factors. Overall, Ms Harris comprehended the questions and the propositions put to her by counsel for each side. Ms Harris was reasonably confident about her recollections on most things although she said that she could not remember aspects of some of the events as put to her. She clearly became a little weary in giving evidence. 493 In terms of the cross-examination, I extended a considerable degree of latitude to Dr Spence as it was legitimate for him to test the accuracy of Ms Harris's recollections. She was, however, tested quite extensively on some of these issues. 494 As to her engagement with Colin on 10 September 2010, Ms Harris says that she was looking for a "wagon" or a "bus or something": T, p 211, lns 17-19. She looked at the cars. Hilary then asked her to go into the office as Colin wanted to talk to her: para 19, affidavit. She went inside and spoke to Colin. Colin said: "So, you're looking for a bigger car on finance?" She said: "Yes". He said: "I don't have a bigger car at the moment but you can take the Ford Fairmont". Ms Harris said: "Okay": para 19, affidavit. Ms Harris says that Colin also asked her a few questions including: "How much rent do you pay?" She said: "$302 per fortnight". She says that Colin was making notes on one of the forms he had before him. She says that Colin asked her to sign a number of forms. One form was headed "AHA Finance". She signed it at the end of the form. Ms Harris says that Colin told her the price of the car was $8,500: T, p 212, lns 7-10. On the first day that Ms Harris went to Supercheap, Colin told her that the deposit would be $1,500: T, p 216, lns 3-5. Ms Harris says that she did not drive the Ford Fairmont on that day. She says she knows a little bit about cars although she does not know much about value. She says that she did not "even look at the car", nor did she know how far the car had travelled: T, p 216, lns 7-12. 495 Ms Harris was taken to the Credit Application Form. 496 She says that none of the handwriting on the first page is her handwriting. 497 The front page notes a vehicle retail price of $8,990 and a deposit of $1,500. It records the name, address and contact details for Ms Harris and records that: she rents premises at Yarrabah; has done so for 33 years; her current employer is Centrelink; and her gross income is $4,223 per month. The References box on p 2 was completed by Ms Harris. Ms Harris signed the form on p 3. Above her signature is a list of seven matters (a) to (g) including statements that all handwritten information on the document including handwritten information by persons other than Ms Harris is true and accurate; and the declared income and expenses represent an accurate assessment of the applicant's financial position. Above that list of seven matters is the heading "Declaration". Ms Harris says that she did not read what was written there. Nor did anyone, she says, "tell her what it was about": T, p 213, lns 35-40. 498 The Financial Information box on p 2 of the form only has three entries out of 10 possible expense entries completed. The completed entries are: "Rent/Mortgage: $300 per M"; "Personal Loan(s): Rentlo $300 per M"; and "Total: $600 per M". There are no entries completed for "Credit defaults, credit card(s), food, phone/mobile, vehicle expenses, utilities, child support, other". Nor is there an entry in the "Surplus/Deficiency" line (for income of $4,223 per month and expenses of $600 per month). 499 Ms Harris says that in the office that day Colin asked her about her rent ($302) and she pointed out to him that his entry of $300 on the form was not correct. She also told him she was paying electricity expenses, expenses for her children's schooling and repayments to Radio Rentals and Chrisco. Ms Harris says she was paying off, at the time, a loan for a "sofa as well as a … television": T, p 213, lns 29-30. 500 As earlier mentioned, p 3 of the form has boxes to be ticked for "Supporting Documents (if applicable)". Six possibilities are listed including bank statements and Centrelink statements. None of the boxes are ticked on the form she signed. Nor is the box ticked concerning the provision of a competitive insurance quote for the car. 501 Ms Harris says that she was asked to bring in a Centrelink statement and a bank statement. She did not have those documents with her and was asked to get them and bring them in. Ms Harris was taken by counsel for ASIC to a Centrelink statement dated 10 September 2010. She says that this is the Centrelink statement that she obtained "at the time": T, p 214, lns 2-3. A schedule of her entitlements to particular benefits is recited on p 1. It says that she was receiving a maximum rate carer payment (for looking after her father), a maximum Family Tax Benefit and support at 100% for six children. At 10 September 2010, the statement records that her previous regular entitlements and payments were these: Previous regular entitlements and payments Payment Type Amount Date Paid Carer Payment $644.20 8 Sep 2010 Pension Supplement $56.90 8 Sep 2010 Govt Housing Authority Concessional amt** $60.00 Family Tax Benefit Part A ($1,009.96)* $1,009.96 1 Sep 2010 Family Tax Benefit Part B ($136.36)* $136.36 1 Sep 2010 Large Family Supplement ($44.24)* $44.24 1 Sep 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. ** Note: This figure is included in the Pension Payment Amount and is for Government Housing Authority purposes only. 502 The Centrelink statement records that her future regular entitlements and payments are these: Future regular entitlements and payments Payment Type Amount Date Paid Carer Payment $645.21 22 Sep 2010 Pension Supplement $56.96 22 Sep 2010 Govt Housing Authority Concessional amt** $60.00 Family Tax Benefit Part A ($1,009.96)* $1,009.96 15 Sep 2010 Family Tax Benefit Part B ($136.36)* $136.36 15 Sep 2010 Large Family Supplement ($44.24)* $44.24 15 Sep 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. ** Note: This figure is included in the Pension Payment Amount and is for Government Housing Authority purposes only. 503 The Centrelink statement also shows that deductions were being made by Centrelink from Ms Harris's entitlements and the deductions were these: Deductions from your payment Payment Type Deduction Amount Date Paid Carer Payment Centrepay Deductions $278.00 8 Sep 2010 Family Tax Benefit Centrepay Deductions $65.50 1 Sep 2010 504 All of these payments seem to be paid fortnightly except for the concessional amount which is otherwise included in a benefit payment ($60.00). The fortnightly future regular entitlements as at 10 September 2010 amount to $1,952.73 or $3,905.46 per month, less the Centrepay deductions of $343.50 (which seems to be a fortnightly deduction) resulting in monthly Centrelink payments of $3,218.46 subject to the "* Note" in the first two tables above. Ms Harris gave evidence that she did not know what the fortnightly deductions of $343.50 "were about": T, p 214, lns 44-45. If her "week-on" earnings were approximately $500.00, her monthly income from work at the Resort on Fitzroy Island would amount to approximately $1,000.00 resulting in total income of $4,098.46 subject to the Note. I will return to the content of these entitlements later in these reasons. 505 At para 29 of her affidavit, Ms Harris says that her "Centrelink income statement" shows that she was receiving benefits each month amounting to $4,230.91. She says that she was receiving less than that at the time (10 September 2010) although she is not really sure. The document, however, that shows an income figure of $4,230.91 is not her Centrelink income statement but the Preliminary Test document. Ms Harris was taken to that document which she says she first saw when ASIC presented a copy of it to her. It says this: Channic Pty Ltd PRELIMINARY TEST Date: 10/08/2010 Client Name: Prunella Kathleen Harris Broker: Cash Brokers Pty Ltd Loan Purpose: Motor vehicle purchase 8990 Cash Deposit 1500 Capacity: Borrower 1 NET monthly income $4,230.91 Borrower 2 NET monthly income $0.00 Maintenance $0.00 total monthly income $4,230.91 Expenses Rent/Mortgage $300.00 Mobile Phone Prepaid Living expenses $2,900.00 Single $950; Married/De facto $1300 Each child $325 Credit Card $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $0.00 Radio Rentals $0.00 Finalised repayment this loan $650.00 total expenses $3,850.00 Surplus/Deficit $380.91 I confirm the information input in this assessment is accurate based on the information I have been provided Signature Broker Signature 506 Ms Harris says, as already mentioned, that the rent item is incorrect. She also says that the zero payments to Radio Rentals are incorrect. So too is the Centrelink advance at zero, incorrect, as she was paying $38.00 each fortnight to Centrelink in repayment of an advance. Her expenses in September 2010 were these (as she described them at para 12 of her affidavit): (a) approximately $302 per fortnight for rent; (b) approximately $150 per fortnight for electricity; (c) approximately $60 per fortnight for my mobiles for credit; (d) approximately $550 per fortnight on groceries; (e) approximately $18 per fortnight for Oxfam; (f) approximately $60 per fortnight for Classic Portrait for photography services; (g) approximately $112.96 per fortnight for Chrisco for a Christmas hamper; (h) approximately $20.77 per fortnight for Viptel to buy my mobile phone; (i) approximately $95.90 per fortnight to Radio Rentals; (j) approximately $4.62 and $63.60 per fortnight for authorised payments, although I don't know what these were for; (k) approximately $80.00 per fortnight into my Christmas savings; (l) approximately $38 per fortnight in repayments to Centrelink for an advance payment; (m) insurance, I think I had third party insurance but I am not sure, registration, petrol and maintenance for the car I had then, which was a Daewoo Leganza, which included about $390 for 6 months registration [$32.50 per fortnight] and approximately $70 per week in fuel [$140 per fortnight]. I spent this much on fuel because I had to drive my kids to school and to Cairns to get groceries and get to Fitzroy Island. 507 These fortnightly expenses amount to $1,728.35 or $3,456.70 per month. 508 As to the bank statement, Ms Harris says that she obtained a copy of a bank statement for her "Streamline e-Access" account with the Commonwealth Bank which she describes as her "normal" account. She gave it to Mr Hulbert: T, p 216, lns 29-30; lns 38-40; lns 42-47. Ms Harris also has an "AwardSaver" account with the Commonwealth Bank which is her Christmas savings account. The only bank statement given to Mr Hulbert was for the Streamline account. As to the Streamline account, Ms Harris says that she understands what the numbers and letters mean on the statement. The statement comprises eight pages. It commences on 1 May 2010 and ends on 21 July 2010. 509 The Streamline account reflects a certain pattern in the transactions. On 4 May 2010, a Centrelink payment was received of $187.20. The account was then overdrawn by $69.40. On the same day, three "authorised payments" were debited to the account. A Yarrabah debit occurs on the same day. These debits amount to $116.30. On 5 May 2010, a Centrelink payment was received of $396.60. On that day there was a Chrisco debit of $56.45 and a cash withdrawal of $390.00. Other fees and charges were debited to the account between 5 May 2010 and 11 May 2010. On 12 May 2010, there were three benefit payments to the account amounting to $1,197.83. On 12 May 2010, there were two major cash withdrawals and other debits amounting to $1,117.34. A similar pattern of benefit credits to the account and immediate withdrawals can be seen throughout the operation of the account. In particular, Ms Harris made significant cash withdrawals. These amounts were used for groceries and expenditures on her children generally and for their schooling. She did not have a practice of carrying around significant amounts of cash. 510 Ms Harris says that after she gave Mr Hulbert a copy of her Centrelink statement, she did not receive the car. She says she was told that the car was not ready that day. She was asked to return "in a couple of weeks". She says that at that time she was working at the Resort on Fitzroy Island and so she called her mother and asked her to "go and pick the car up": T, p 218, lns 21-24. 511 Ms Harris gave evidence that: "I signed all the paperwork before I went back to work". 512 In her affidavit, Ms Harris says, in the context of the discussion of the events which occurred on 10 September 2010 when engaging with Colin, that Colin gave her "a few documents to sign". She says that he "just turned the pages and pointed to where he wanted me to sign". She says that she did not understand "what the documents were for and he didn't explain them to me": para 20. At para 36, Ms Harris says that she went across the road to the bank and took out $1,500.00 in cash. She then went to Centrelink and obtained a Centrelink income statement. That statement is dated 10 September 2010. She says she then returned to the car yard and paid $1,500.00 in cash to Colin for the deposit and handed Colin the Centrelink income statement dated 10 September 2010. Colin also took a copy of her driver's licence. At para 38, she says that Colin took the deposit, the Centrelink income statement and returned to her the driver's licence. At para 39, Ms Harris says that there was a second visit to the car yard on or about 20 September 2010. She returned to the car yard. She cannot recall whether she spoke to Colin or Mr Kevin Humphreys. She says she spoke to one of them. One of them put a long document in front of her and asked her to: "Please initial each page and sign here". She signed and initialled the document. She says that she did not have a chance to read the document before she signed it. The document she is speaking about is the Credit Contract with Channic. She says she signed it on or about 20 September 2010: paras 36 to 42. 513 In her oral evidence, Ms Harris was then asked by counsel for ASIC to explain the events that occurred on the occasion when she went to the car yard to sign all the papers. 514 In answering that question, Ms Harris was taken to a copy of the document described as Consumer Loan Contract and Mortgage No: 5085 (the Credit Contract). Ms Harris gave evidence that she did not know what a mortgage was. She gave evidence that her initials were at the foot of p 1 and pp 6 and 7. She acknowledged that Box A at the top of p 7 is crossed out. She gave evidence that Colin crossed out Box A: T, p 219, lns 1-3. She says that she did not read any of the writing on that page and that no-one explained any of it to her. She says that Colin "just asked me to sign". As to the signing, she says that: "He just wanted to flick through the pages and wanted me to sign my signature and initial every page down the bottom": T, p 219, lns 10-12. Ms Harris signed the document in Box B and signed the document on p 6. She initialled each page at the foot. 515 Ms Harris was asked whether Mr Hulbert was also signing the document when she was signing it. Ms Harris said that he "was there as well" but that she could not remember whether he was "also signing the document": T, p 219, lns 24-27. 516 The Credit Contract between Channic and Ms Harris contains this information in the Financial Table: FINANCIAL TABLE Amount of credit of the loan $8,501.50 Annual percentage rate 48% per annum Total amount of interest payable $3,466.85 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 40 consisting of 39 repayments each of $299.24 Plus a Final Repayment of $297.99 Total amount of repayments $11,968.35 Date of first repayment 29/09/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 29/09/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we we [sic] make such a change, we will notify you. End of Financial table 517 As to the Financial Table, Ms Harris says that she was not told about how much money she was going to borrow. She was asked: "Did you want to borrow money at this time?", and answered: "Well, no. No one explained to me anything". She was taken to the interest rate of 48% and was asked: "Did you know then what that meant?" She said: "I don't know". She was asked: "Do you know now what it means?" She said: "No. I still don't know". She was asked: "Did someone – anyone tell you about how much you were going to pay back in terms of the total amounts of payments?" She said: "No". She was taken to the amount of the total repayments of $11,968.35 and was asked: "Did anyone tell you that that was how much you were going to pay back?" She said: "No". Ms Harris said that she had paid a deposit of $1,500.00 and it was put to her that taking into account the deposit, her total payments would then be $13,468.35. She was asked: "Would you have been happy to buy the car at that price?" She said: "No. I wanted something less. I didn't expect that". She said that there was no discussion about how much she would be repaying for the purchase of the car: T, p 219, lns 29-46; T, p 220, lns 1-14. 518 Ms Harris was then taken to the reference to the "Comparison Rate" at the foot of the table which says this: Comparison Rate 46.9597% per annum This rate is calculated on the $8,501.50 credit amount over a 80 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 519 Ms Harris gave evidence that she does not know what a Comparison Rate is: T, p 220, ln 20. 520 Page 2 contains a schedule setting out a range of information. The top four boxes of the schedule are in these terms: Schedule Offer date 20/09/2010 Loan Draw Down Date 20/09/2010 Loan term commencing from the Draw Down Date 80 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $7,490.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates [This box contains a repayment schedule which sets out the due date for repayments from No. 1 to No. 40 and the amount payable for the first 39 instalments of $299.24 and an amount of $297.99 for the 40th repayment] Interest is calculated in accordance with Clause 5 of the General Conditions. … 521 Ms Harris says that a Loan Establishment Fee of $21.50 was not explained to her by anyone. As to the brokerage, she was asked: "Did you know what brokerage was?" She said: "No, I don't". She says that she did not know anything about Cash Brokers until ASIC spoke to her about it. She says that she did not have any conversations with anyone about paying brokerage to anyone or an amount of $990.00. She was asked: "Did you have a discussion with anyone about when you would pay off the finance that you had?" She answered: "No". As to the column of figures in the schedule setting out the 40 repayments and the repayment dates, she was taken to the last payment on 28 March 2012 and was asked this: "Did you know that you were paying off the loan at that time?" She answered: "No, I didn't know that – how long it was". She was asked whether she read the document "at all" as it was before her when signing it. She said: "No, I didn't". She was asked: "Did anyone tell you to read it or …?" She answered: "No, no one asked me to read it". Ms Harris was asked this: "And, Ms Harris, by signing [the Credit Contract] – when you signed that document – do you know what that document was for?" She answered: "No, I don't". 522 Ms Harris was then taken to a document described as "Acknowledgement and Consent for Receipt of Electronically Transmitted Documents" (Tab 8 of her affidavit). Ms Harris signed that document. She was asked: "Did anyone explain to you what that – signing that page was about?" She answered: "No". 523 In her affidavit, Ms Harris says that neither Colin nor Kevin talked to me about being able to get legal advice before I signed the document. Although p 7 of the contract says that Ms Harris might choose to obtain legal advice before signing the Credit Contract, she says that she did not read this before she signed the document and she did not obtain legal advice before signing the document. 524 The Credit Contract bears the signature of Mr Hulbert. A date is endorsed on the contract of 20 September 2010. 525 Ms Harris was then asked about the car and the problems with it. She says that when she took possession of the car there was "a nail sticking out of (the tyre)". There was no fuel in the car and the radiator kept overheating and breaking down. She says she made telephone calls to Colin to get these things fixed. Colin said that if there was a problem with the car he would see to it straightaway. She says that Colin did not return her calls. Her son changed the tyre. Ms Harris says she continued to call Colin about having the radiator fixed. The car eventually stopped completely. She telephoned Colin. He sent a tow truck to pick it up in March 2011 and Ms Harris has not seen the car since. She continued to telephone Colin about it "but every time I phoned up, Colin wasn't in the office": T, p 221, lns 33-45; T, p 222, lns 1-23. 526 As to the loan repayments, Ms Harris says that she stopped paying them. She says that she thought she would be able to make the repayments when she got the loan although she was not really confident about it. She says there had been problems with the direct deposits from her bank account and therefore she had been making the payments in cash at the car yard. She says that from the next payment which was due after the car was towed away in March 2011, she stopped making the repayments. She says that while she was making the repayments on the loan it was very difficult for her financially: paras 62 to 66 of her affidavit. Also at para 66, she says that due to the repayments, these events occurred: I got about $1,000 behind on my electricity bill due to all my expenses. I cut down on the food that I bought for my family. I had to cut back on recharging my prepaid phone. The kids had to stop having pocket money. I didn't have the money to pay for new school shoes for the kids. I had been helping my son with money. He is on a football scholarship and I usually send him some money, but I couldn't do this. 527 Tab 12 to her affidavit is a copy of an agreement between Radio Rentals and Ms Harris dated 24 January 2008. The document is described as a lease for a period of 18 months with 18 payments of $110.33 comprising a rental amount of $94.89 and fees of $15.44. The total amount payable over the lease period is $1,985.94. The leased goods are a lounge and footstool. 528 Tab 13 to her affidavit is a copy of an agreement between Radio Rentals and Ms Harris dated 18 May 2010. The document is a lease for 36 months with 36 payments of $97.48 comprising a rental amount of $86.47 and fees of $11.01. The leased goods seem to be a Daewoo LCD Full Screen Television. 529 Ms Harris says that neither Mr Hulbert nor anybody else at the car yard asked her to obtain documents in relation to her agreements with Radio Rentals. 530 At the outset of the cross-examination of Ms Harris, Dr Spence put this to her: "… and the day you first went there [Supercheap], that was 20 September 2010, was it?" Ms Harris said: "Yes". In the context of Hilary accompanying Ms Harris, Dr Spence asked this: "And he went there with you on 20 September 2010?" She said: "Yes, he did": T, p 225, lns 24-25; ln 43. Ms Harris, in her affidavit evidence and in her oral evidence, had spoken about a first visit to Supercheap and then a second visit. She described the first visit as having occurred on 10 September 2010. Dr Spence, however, put to her at the outset that she first went there, with her cousin, on 20 September 2010. This may well have introduced, innocently, a degree of confusion in the mind of Ms Harris because her earlier evidence had not suggested that the first visit to the car yard was on 20 September 2010. 531 Dr Spence then directed the attention of Ms Harris to Mr Hulbert who was sitting behind him. Ms Harris was asked: "Do you know if that was the man that he [Hilary] had a conversation with?" She answered: "Yes". Dr Spence suggested that Hilary had spoken to a different man. Ms Harris disagreed. Dr Spence suggested that on the first occasion that Ms Harris went to the car yard, she had a conversation with Mr Kevin Humphreys. Ms Harris was asked: "Does that sound familiar?" She answered: "I remember Kevin, but he wasn't the one that … I spoke to on the first day I went there". Ms Harris was then asked this: "And then, on that day – do you say it was the same day, 20 September 2010, you signed the contract?" She answered: "On the same day": T, p 226, lns 1-7; lns 27-32. 532 Dr Spence then drew attention to that part of her affidavit which says that Ms Harris went with her cousin to the car yard on 10 September 2010. Ms Harris responded: "The first day I went to the car yard is when I signed the papers": T, p 226, lns 34-35. Dr Spence then asked this: "So you agree now – was it 10 September you went there? It was 10 September 2010, not the 20th?" She answered: "I know it was in September. I can't remember exact": T, p 227, lns 1-3. 533 Ms Harris confirmed again that she did not have a conversation with Mr Humphreys on that first day. Rather, she spoke to "the man sitting behind" Dr Spence, Mr Hulbert. Ms Harris said that she knew who Dr Spence was talking about and understood that that person was Mr Hulbert. She said that she did not speak to Mr Humphreys at all that day but did so "on the second time I went around": T, p 227, lns 7-17. Ms Harris says that she was told on that first day that she would need to come back later as the car was not ready. 534 Dr Spence took Ms Harris to the Credit Contract and drew attention to p 6 which contains her signature. Dr Spence put this to Ms Harris: "So would you agree that you must have gone back to the car yard on 20 September 2010 and that's when you signed that document?" She answered: "That's all I got to do, is sign on that day, but I didn't put the date in": T, p 228, lns 22-24. Dr Spence put to Ms Harris that the date must have been 20 September 2010. Ms Harris seemed to agree with that observation by reference to her periods of work at Fitzroy Island. She said that on the day the car was ready to be picked up, members of her family went back to the car yard to collect the vehicle as Ms Harris was on the Island. 535 Dr Spence then put to Ms Harris, somewhat confusingly, this: "So – and you took the car away on 20 September – that day that you signed the contract. Is that right?" She answered: "No": T, p 229, lns 3-4. 536 She agreed that the car still had to be repaired as at 20 September 2010. She was asked whether she went back after 20 September 2010. She said: "Yes". She was asked when that occurred and she said that she was not really sure. However, the suggestion was then put to her that maybe a week or two after 20 September 2010 she went back to the car yard and that was when she picked up the car. She was asked whether that would be right. She answered: "The car was already home". Ms Harris had given evidence about her mother having picked up the car due to the working arrangements at Fitzroy Island. When asked how the car was already at home, Ms Harris said: "Well, the car got picked up from my mother and my son. I was on the island when the car got picked up". 537 Ms Harris was taken to p 20 of the Credit Contract which contains a "PayGate Direct Debit Request". Ms Harris accepted she had signed that document. It is dated 20 September 2010. She gave evidence that she was having problems with direct debits from her bank account for the car so she had made repayments in cash. The following exchange then occurred (at T, p 230, lns 24-31): Q: Can I just take you to that direct debit request. Do you see where your signature is? You agreed you signed it. Am I right about that? A: Yes. Q: And then it has a date on it which looks like 20/9/10. Is that right? A: Yes. Q: Do you remember now signing that on that date? A: Yeah. I went in the office and I just signed all the papers all in the one hit. 538 In the context of the two dates of 10 September and 20 September 2010, Dr Spence put this proposition to Ms Harris: "Ms Harris, I want to suggest to you – I'm not trying to trick you – I want to suggest to you, you didn't see this man sitting behind me [Mr Hulbert] on 10 September 2010; you saw Kevin Humphreys". She answered: "No". Dr Spence then said: "And I want to suggest to you that when you went back on 20 September 2010, that's when you had a conversation with Mr Hulbert, behind me?" She answered: "No" and added: "No. On the first day I went to the car yard, that's when I spoke with Kevin – Colin. On the second day, it was Kevin – not [the] second day, but the second time I went there. … It was Kevin": T, p 231, lns 34-46. 539 Dr Spence returned to this topic in the context of Ms Harris having said in her affidavit at para 20 that Colin had given her a few documents to sign on the first occasion that she went to the car yard. This exchange occurred at T, p 232, lns 24-27: Q: See, I suggest to you that you've got a bit confused and that it was 20 September 2010 that Colin gave you a few documents to sign and not 10 September. Do you think that you might be a little bit confused about that? A: I may be. I'm not too sure, but I remember that he did give me a few forms that I had to sign … without reading. 540 Ms Harris said that it was on the first visit that she talked about getting finance for the car and at this visit she was asked to go and get a Centrelink statement and get a bank statement as well as the deposit: T, p 232, lns 45-46; T, p 233, lns 5-6. Ms Harris signed an initial statement given to ASIC, on 29 November 2011. In that statement she asserts her meeting with Mr Hulbert on 10 September 2010 and the notion that Colin gave her a few documents to sign. She says that those documents were the "AHA Finance" form and the "Credit Application Form". She says that on 20 September 2010 she went back to the car yard and spoke to either Colin or Kevin. The Credit Contract was put in front of her and she was asked to sign it. As to this earlier statement, Dr Spence put this to Ms Harris at T, p 233, lns 32-37: Q: … Thank you. So, when you signed that, do you think your memory might have been a little bit fuzzy about what happened on 10 September 2010 and what happened on 20 September 2010? A: No. Q: It wasn't? You could still remember? A: I – I am a bit confused, but I – like I remember what happened back – back then. 541 Ms Harris was taken to the Credit Application Form by Dr Spence. This exchange occurred at T, p 236, lns 19-34: Q: I suggest to you that the person that filled out that document was a man called Kevin Humphreys and not Colin Hulbert, and that was on 10 September 2010; does that help you at all about who you spoke with on 10 September 2010? A: No. No, I don't remember that, but all I know is that is not my writing. Q: And I suggest to you that Mr Humphreys asked you some questions about your income on 10 September 2010, the first day you went there. A: Yes, I'm thinking. But no, that – I don't remember that. Q: Do you mean you don't remember whether he filled out this document or …? A: Yes, I don't remember he filled [it] out – I don't know – I don't remember if he filled this document out. Q: Do you remember that [that] document was filled out on 10 September 2010? A: No. 542 Ms Harris identified her signature on p 3 of the Credit Application Form. She was asked: "So would you agree you signed this document on 10 September 2010?" She said: "Like I said, I didn't put the date and that in. I just signed all the papers". 543 Ms Harris was then taken to the Credit Contract. She recalled signing her initials in the corner of each page and signing it on the back page. She recalled that she was speaking to Mr Hulbert at the time she was signing the contract. The proposition was put to Ms Harris that Mr Hulbert showed her the "Information Statement" at pp 18 to 20 of the Credit Contract. She said: "I didn't get the chance to read the papers at all or go through them. He just asked me to sign. … I didn't get a chance to read through any of the paperwork at all": T, p 238, lns 1-10. 544 As to the signing, Ms Harris was asked this (T, p 238, lns 12-14): "When you talked to Mr Hulbert – around the time you signed this contract … how long did that take?" She answered: "About 45 minutes to an hour …" Ms Harris says that they talked about the car. As to the contract, "he just asked me to sign some papers, and that's it". When asked how long it took Ms Harris to sign the papers, Ms Harris said that she signed the papers and at the same time she was there she went looking for her cousin Hilary who was also there on 20 September 2010: T, p lns 20-27. Dr Spence suggested that other conversations occurred with Mr Hulbert in the course of signing the Credit Contract and they were concerned with Mr Hulbert taking Ms Harris "through a whole lot of things that are written down in that contract". Ms Harris said: "He never explained to me about the legal situation and whatever else". Ms Harris was referring to the arrangements about legal advice. Ms Harris was again asked: "How much of the 45 minutes to an hour that you were with Mr Hulbert on 20 September 2010 do you say was spent signing documents?" She answered: "Well I – most of it, yes … well, I was signing, and my cousin was there and looking around, as well as Colin was there, talking". 545 As to the Credit Contract, this exchange occurred at T, p 241, lns 1-17: Q: Are you saying that you signed this and initialled it all, only you didn't look at any of it? A: No, I didn't. Q: Well, what did you think it was about? What did you think the document was about? A: Just paying off a car. Q: So it was about paying off a car? A: Yes. Q: … Did you think that it might set out what you had to do to pay off the car? A: No. Q: You didn't have any idea what was in it at all? A: I only knew about the total price was supposed to be a hundred – 8,500, and I was paying a deposit [repayments] of 300 fortnightly. Q: After you left the office, you took a copy – on 20 September 2010, you took a copy of that document home, didn't you? A: I did grab a copy, but I didn't take it – end up taking it home with me. It got lost in the car somewhere. 546 Dr Spence returned to the question of the conversations with Mr Hulbert extending for three-quarters of an hour, and this exchange occurred at T, p 242, lns 21-29: Q: I suggest, Ms Harris, you've forgotten a great deal of the conversation that happened in the three-quarters of – 45 minutes to an hour that you say you were with Mr Hulbert on 20 September 2010 … I'm suggesting you've forgotten a lot of the conversation. A: I'm not sure. I'm not sure. I can't remember that far back. Yes. Q: You can't remember that far back? A: Yes, that's four years ago. 547 Dr Spence took Ms Harris to the Financial Table on p 1 of the Credit Contract. He took Ms Harris to the 39 repayments of $299.24 fortnightly and suggested that Mr Hulbert had told her that these were the repayments she had to make each fortnight. Ms Harris said that she could remember Mr Hulbert saying something about the repayments. She then said that she was "not sure" whether he had told her about the amount because she had been paying $300 in cash. Dr Spence asked Ms Harris whether she could recall Mr Hulbert telling her that the amount of credit being provided by the loan was $8,501.50. She said that she remembered him telling her that the total price for the car was $8,501.50: T, p 244, lns 30-34. Ms Harris re-affirmed her evidence that Mr Hulbert did not tell her about the interest rate of 48%. She said that she did not remember Mr Hulbert telling her that the total number of repayments was 40, although Ms Harris then said that she could not remember that matter, that is, whether or not he told her about that matter. However, there may have been some confusion on this issue because Dr Spence then sought to clarify the issue and put this to her at T, p 245, lns 38-40: Q: Yes, but you can't remember whether he told you about what's on the document, that there were 39 repayments of $299.24? You can't remember whether he told you that or he didn't; is that right? A: I can't remember that he said that to me. 548 In other words, Ms Harris seemed to be asserting an affirmative recollection that Mr Hulbert did not tell her about that matter. Ms Harris also said that Mr Hulbert did not explain to her the amount of the total repayments of $11,968.35. Ms Harris said she was "sure" about that matter and that Mr Hulbert had never told her that "the total pricing of the car would cost that much … $11,968.35": T, p 246, lns 1-12. 549 Ms Harris was taken to the schedule. Dr Spence put to her that the actual price of the car was $7,490.00, not $8,500.00. Ms Harris said that she was told that the total amount for the car was $8,501.50. She thought the car cost $8,500.00. She could not recall whether she was told that on 10 September or 20 September 2010 "but yes, I know I got told that": T, p 246, lns 30-41. 550 The relevance of these matters goes to the recollections of Ms Harris more generally. The respondents admit that Ms Harris completed a contract to purchase the Ford Fairmont at Supercheap for a cost of $8,990.00 with the assistance of credit from Channic. A deposit of $1,500.00 results in a balance payable of $7,490.00. 551 Dr Spence then returned to the topic of the time spent by Ms Harris with Mr Hulbert and suggested to her that she had spent about five to 10 minutes signing the documents and that the remaining part of the "45 minutes to an hour" involved Mr Hulbert talking to Ms Harris "about what was on that contract". Ms Harris responded by saying that if Mr Hulbert had explained the contract to her, she would have known what it was about "but I didn't know what the contract was about": T, p 249, lns 13-25. Ms Harris gave evidence that Mr Hulbert said "just sign it [the contract] here so you can get your contracts done". Ms Harris said Mr Hulbert was in a hurry and although she could have taken the documents home and read them, that was not "how it happened": T, p 250, ln 1; ln 8; ln 19; ln 23. Dr Spence suggested many times to Ms Harris that she in fact was in a hurry. An example is the following exchange: Q: So could it be you were in a hurry to get back to Yarrabah because you had stayed overnight and … your relatives were doing you a favour to drive you back to Yarrabah? A: No, why would I be in a hurry? Q: I'm just asking you? A: No, I wasn't in a hurry. Q: Well then, why didn't you have a read of that contract before you signed it? A: Because I didn't get the chance to read the contract. Q: What do you mean you didn't get the chance? A: I had to just flick through the pages. Q: But you could have taken it with you without signing it, couldn't you? A: Yes, I know that. Q: And you knew that that day? A: No, [I] didn't know it on that day. Q: What, you didn't know that you didn't have to sign it that day? A: No, I didn't know anything about finance. This is the first finance that I went through. I don't know anything about finance. Q: I'm just asking you why, if you wanted to know what was in that written contract, you didn't insist on reading it before you signed it? A: I didn't read the contact before I signed it because Colin was in a hurry, like I said, and I had to just put my signature and I sat it there on the table. Q: But what did it matter whether Colin was in a hurry? If you weren't in a hurry, why couldn't you just take it home and come back another day? A: Well, he wanted the paperwork. He didn't want me to take it. Q: Did he say to you, did he, "you have to sit here and you have to sign this or you are not getting a car". Is that what he … A: No, he didn't say that to me. Q: Well then, you could have walked out with the contract without signing it, couldn't you? A: I suppose I could have. Q: I suggest to you that you can't really remember what happened that day? A: I remember what happened; that's why I – like, bits and pieces. 552 On the issue of the interest, Dr Spence put this question to Ms Harris: "So you expected you were going to get the money to buy a car without having to pay interest; is that right?" She answered: "No. I know I was paying the car off, but I didn't – I don't know about interest and whatever". 553 Dr Spence then again returned, after asking further questions about events that occurred on 10 September and 20 September 2010, to the topic that Ms Harris had forgotten the content of the conversation with Mr Hulbert. Dr Spence put this proposition to Ms Harris: And I'm suggesting to you that you've forgotten the conversation Mr Hulbert had with you about the contents of the loan contract on 20 September 2014 because your focus was all about getting the car and not finding out – and not listening to Mr Hulbert telling you what was in the contract. 554 At this point it was clear that the witness was distressed. She declined to take a break and said that she wanted to "just get it over and done with". 555 Dr Spence pressed Ms Harris with the notion that she was desperate to get the car and was, in effect, taking all steps necessary to get the car quickly and was thus not interested in reading the documents. In this context, Dr Spence began to put to Ms Harris that she obtained the Centrelink statement and her bank statement at some time after 10 September 2010 and that she went back to the car yard with those documents and the deposit on 20 September 2010. Ms Harris said that those things occurred before 20 September 2010 and Dr Spence pressed her with the notion that they occurred on 20 September 2010. Ms Harris reasserted that those things occurred before 20 September 2010. This exchange then occurred: "So are you saying you went back to the car yard between the 10th and the 20th of September?" Ms Harris said "No" and re-asserted that these things had occurred on the first occasion that she went to the car yard. Dr Spence then put to Ms Harris that she had said earlier that it was after the 10th that she went and obtained the deposit and the Centrelink Statement. This was not the earlier evidence and it must have been confusing for Ms Harris. Ms Harris expressed the view that she was confused: T, p 258, lns 33-34. She had earlier said that she obtained the Centrelink Statement, the deposit and the bank statement all on 10 September 2010. 556 These exchanges continued to this point at T, p 258, lns 42-46; and T, p 259, lns 1-15: Q: I'm talking to you about the fact that you went there [Supercheap] on the 10th, you were asked to get the deposit, you were asked to get the Centrelink? A: Yes, I was asked. Q: You were asked to get a bank statement on the 10th? A: Yes, I was asked. Q: And it was after that you got those documents and then you came back on the 20th? A: Yes. Q: Do you agree with all of that? A: Not really. Q: That's because you can't really answer? A: I can't – like I said first time to you, I can't really recall everything. Q: You can really remember what happened? A: Remember ... I can remember taking all those things in, but I can't remember the exact date. Q: That's why you're getting confused: because you can't really remember what happened when; is that fair? A: Yes. 557 It is clear from this exchange which came at the end of lengthy similar exchanges that Ms Harris was becoming confused and would agree with one proposition and then disagree with it again. Accordingly, the following exchange occurred between the Court and Ms Harris: HH: So, Ms Harris, can I just ask you a couple of questions, because I'm concerned that you're being pressed greatly about these things and being asked the same question over and over again. A: Yes. HH: So the position is that you have a recollection that you went to the car yard on a particular day, the very first day, and you went there with your family member to look at the possibility of purchasing a larger car for your family, correct? A: Yes. HH: Okay. And you were interested and concerned and keen to buy a larger car, because you needed a larger car for the family? A: Yes. HH: Right. And, when you went there, you were shown a particular car and offered a particular car, and you talked about the price that was suggested for that vehicle. That's on the first occasion? A: Yes. HH: Yes. And on that first occasion, you were then told that you would need to go and obtain a Centrelink statement and obtain a deposit and obtain some bank statements? A: Yes. HH: Right. And what did you do next? Did you go away that day and get that material, or did you go away …? A: Yes, I did. HH: Do you remember going away that day to get those things? A: Yes. HH: So is it right to say that on that very first day, whatever the date was – let's leave to one side – but on that first date when you went there and you were told that you would need to get the Centrelink statement, the bank statement and the deposit, you went away that day and what did you do? Do you remember what you actually did? A: I went and got those things and I went back to the car yard. HH: So for the deposit did you go to an automatic teller machine or something? A: No. I walked into the Commonwealth Bank and made a withdrawal … over the counter. HH: And how much did you withdraw? A: $1,500.00. HH: Right. Okay. So that was one thing you did that day and what about getting the Centrelink statement? What did you do to get the Centrelink statement? A: I walked into the Centrelink office in Earlville … I had to walk into the Centrelink office in Earlville to get the income statement. HH: So where is Earlville? A: Earlville in Cairns … I walked over. The car yard was only just next door. HH: Okay. So you then went from the car yard to Centrelink and you got the Centrelink statements that you needed? A: Yes. HH: And what was the next thing – did you go to the bank to get the bank statements? A: I went across to the bank first … then came back to Centrelink. HH: And that was the Commonwealth Bank? A: Yes. HH: And where's the Commonwealth Bank? A: It was straight across the road next to the pet shop. HH: Is it very far from the car yard? A: It wasn't far across the road from … HH: So you walked over there? A: Yes, I walked. HH: And how long did it take you to get the Centrelink statements and the bank statements …? A: Well – when you wait in a line, it's not more than, like, half an hour. HH: And so that was at Centrelink? A half an hour or so at Centrelink? A: Yes. HH: And sort of how much time at the bank did you spend there getting the [statements]? A: Not more than 10 minutes. HH: And then you went back to the car yard; is that right? A: Yes. HH: And what happened when you went back to the car yard? A: I was asked to sign the forms. HH: And? A: The paperwork. HH: And so you were asked to sign the forms, the paperwork that you had been looking at in that folder, on the first day that you went to the car yard? A: Yes, some paperwork I did sign on that day. HH: The first day? A: Yes. HH: And you paid the deposit on the first day? A: On the first day, as well. HH: And who did you give the deposit money to? A: On the first day I went there, I only spoke with Colin, the first day, because Hilary is my cousin. He introduced us, yes. HH: And did you physically give the deposit monies to Colin? A: Yes, he was on the other side of the table … and I was sitting on this side of the table … I put it on the table with my income statements and bank statements. HH: So three things happened: you put the deposit money on the table with the Centrelink statements and the bank statements? A: Yes. HH: And – so this would have been about 45 minutes to an hour after you had been there for the first time? A: Yes. HH: You went away and came back? A: Yes. HH: And is it then that you signed … some of the documents or all of the documents? A: Some of them, yes. HH: And then the car, as you understood it, would need some repairs and wouldn't be available? A: Yes. HH: And then you left? A: Yes. HH: [When you came] back a second time do you remember: was that a week later? Two weeks later? Do you have any idea of how much later? A: I'm pretty sure, yes, because I was busy with my kids – spending time with my kids as well as working … I did get told the first time I went there [that] the car won't be ready until two weeks maybe. HH: Did you go back about two weeks later? A: No, I was working at that time, so I came back later. HH: So that was the second time you went to the car yard, was it? A: Yes. HH: And did you sign more documents then? A: Yes, I had to. HH: You did? And who did you meet with on the second occasion? A: I don't really remember exactly who it was. HH: And then do you remember what happened on the second occasion. What did you do? You signed some documents but what else happened? A: And the car still wasn't ready for being picked up. HH: And do you remember who told you the car wasn't ready? A: Whoever I spoke with that day … yes and they said it wouldn't be ready for another couple of days, maybe … by that time came around, I had to go back to work so my Mum, Mrs Fisher … she was home and I asked her to go … my mother and my eldest son. HH: Went to pick up the car? A: Yes … they took the car – they ended up getting it to Yarrabah … I wasn't [at Yarrabah], I was on Fitzroy Island. HH: When did you first see the car? After it was picked up? A: When I got home to Yarrabah. 558 At para 27 of her affidavit, Ms Harris says that she was earning between $2,600 and $2,800 per month which, I assume, is intended to be a statement of her earnings at or about September 2010 (on a forward-looking basis; see [502] of these reasons). Although Ms Harris agreed (without being "sure" about it; T, p 268, lns 33-34) with Dr Spence's proposition that her earnings of $500 per week meant that she would have been earning $2,000 per month from the Resort work, her later evidence was that she was not paid for the "week-off" in each two week cycle. Thus, her Resort earnings would have been $1,000 per month. I have noted the Centrelink benefits at [501] and [502] of these reasons and the Centrepay deductions at [503]. 559 The bank statement shows that the following payments were made into the account which seemed to be benefit payments received by Ms Harris: Date in 2010 Transaction Amount 4 May Centrelink EDU Payment $187.20 5 May Centrelink Carers $396.60 12 May Aus Gov Families $131.43 12 May Aus Gov Families $959.70 12 May Centrelink Carers $106.70 18 May Child Support $110.59 19 May Child Support $8.77 19 May Centrelink Carers $396.60 24 May Child Support $13.65 26 May Aus Gov Families $131.56 26 May Aus Gov Families $900.69 26 May Centrelink Carers $106.70 28 May Child Support $13.65 560 As at May 2010, the fortnightly Carer payments were $396.60 and $106.70 amounting to $503.30 or $1,006.60 per month. The Part A Families Benefit for that month was $959.70 and $900.69 amounting to $1,860.39 for the month. The Part B Families Benefit was $262.99 for the month. There were also Child Support payments. The value of the benefit entitlements for that month was $3,129.98, based on the bank statement. However, the Credit Contract was entered into four months later on 20 September 2010. 561 If the Carer Benefit was $644.20 (as the Centrelink Statement shows at [501]) and $278.00 was deducted through Centrepay (as [503] of these reasons shows) the net credit to the account would have been approximately $366.20 which is the approximate credit on 5 May and 19 May 2010. The Centrepay Family Tax Benefit deduction was $65.50 (as [503] of these reasons shows). That would result in a net credit for Part A of approximately $944.46 which approximates the fortnightly net credits to the account on 12 May and 26 May 2010. 562 The safest guide to the income Ms Harris was receiving from Centrelink Benefits is the Centrelink Statement of future regular entitlements and payments as set out in the Centrelink letter of 10 September 2010. There is, however, a reasonable degree of reconciliation between those payments and the payments Ms Harris seems to have been receiving under the Statement of Benefits (at [501] of these reasons) when compared with the bank statement. 563 The documents in evidence contained in the ASIC trial bundle include Vol 5 which contains the documents relating to Ms Harris within the CBPL file and the Channic loan file. 564 Ms Harris, of course, gave evidence that when she first went to Supercheap on 10 September 2010, she did not deal with Mr Humphreys. She dealt with Mr Hulbert. Mr Humphreys was a representative of Supercheap and CBPL. 565 However, in the CBPL file (Document 1), is a copy of the standard letter signed by Mr Kevin Humphreys (as described at [366] of these reasons) as the credit representative for CBPL to Channic making application for a loan on behalf of Ms Harris in an amount of $7,490.00 with a request for repayments of approximately $300.00 per fortnight. 566 That letter, oddly enough, is dated 10 August 2010 which is the same date endorsed on the CBPL Preliminary Test, as earlier mentioned (Document 6). 567 The invoice from CBPL to Channic for brokerage fees of $990.00 (Document 8) is also dated 10 August 2010. 568 The Channic file contains a copy of the CBPL application letter dated 10 August 2010. The Credit Application Form (Document 10) bears the date 10 September 2010. The AHA Finance document (Document 11) bears the date 10 August 2010. The file contains a copy of the Centrelink statement of 10 September 2010 (Document 13) and a copy of the CBPL Preliminary Test (Document 14). The Channic Credit Suitability Assessment (Document 15) recites that the assessment was made on 10 August 2010. It is signed by Mr Hulbert. The Channic Loan Inquiry Checklist (Document 16) is also dated 10 August 2010 and signed by Mr Hulbert. The Channic Verification Checklist (Document 17) is also dated 10 August 2010 and signed by Mr Hulbert. The Channic letter, acknowledging CBPL's loan application letter on behalf of Ms Harris and advising CBPL that Channic's assessment is that the Credit Contract is not unsuitable for her (Document 18), is also dated 10 August 2010 and signed by Mr Hulbert. The Credit Contract (Document 19) is, as already mentioned, signed by Ms Harris. Pages 6, 7 and 20 bear an endorsed date of 20 September 2010. The Veda credit search (Document 21) is endorsed with a report date of 10 September 2010. The Supercheap Car Sales Tax Invoice (Document 23) addressed to Ms Harris for the sale of the car in an amount of $8,990 is dated 20 September 2010. PART 10: THE EVIDENCE OF MS KERRYN GERTHEL SMITH 569 Ms Smith swore an affidavit in the proceeding on 17 June 2014. 570 In that affidavit, she sets out the following matters. I will also make reference to Ms Smith's oral evidence. 571 Ms Smith was born on 8 September 1983. She was 28 years of age when she first engaged with Supercheap about buying a car. She completed schooling to Year 12 level at Gordonvale State High School. She left school in 2000. Immediately after leaving school she obtained a job with "Community Development Employment Projects". She had that role for about a year. She had a child in 2003. Since then, she has been engaged in home duties apart from a period from about February 2013 to March 2014 when she had a job with the Education Department as a cleaner. Ms Smith can read and write English "perfectly well". She also speaks English well. It is the only language she speaks. At the time that she decided to buy a car, she was living in a rental property owned by her parents at Yarrabah. She was paying board of about $200 a fortnight. At that time, she had three children living with her and she was pregnant with her fourth child. Her parents were also living with her. She has five children and she now rents her own house with her partner. The five children aged between two and 11 years live with her and her partner. 572 Because Ms Smith had young children and did not own a car, she decided to buy a car. 573 On or about 6 April 2011, she decided to go to Cairns with her younger brother, Yasserie, to look for a car. Yasserie was then aged 26. He was a bit of a "bush mechanic" who worked on cars. Ms Smith says that they tried a number of different car yards including "Federation" at Portsmith. Ms Smith says that the car yards they went to were not able to provide finance to a buyer of a car who was relying upon pensions or Centrelink payments for his or her income. In Ms Smith's oral evidence she says that they only went to one car yard (the Federation site at Portsmith) before she saw the Supercheap sign: T, p 327, lns 38-39. 574 Ms Smith says that she and her brother were driving through Cairns and they saw the Supercheap sign that said that 20 minute approvals were possible for people receiving Centrelink income (and had bank statements available). Ms Smith decided to go into the car yard. Ms Smith says that "[o]ther people had warned me not to go to SuperCheap and I'd heard stories but I thought it was my only way of getting a car". 575 Ms Smith says that before leaving Yarrabah to look for a car, she thought that she would probably be able to find a "private sale" of a car in Cairns for about $2,000. She did not expect to have to borrow any money to buy a car. She thought she could simply spend the money she had in the bank which was about $2,000 to $3,000. She was looking for a five door sedan which she describes in this way: "… just a small car because it was my first time buying a car". 576 Ms Smith says that when she and her brother walked into the Supercheap car yard, they both had a look at the cars and decided upon a white sedan which Ms Smith "really liked". A man named "Kevin" (see also T, p 306, ln 22) came over while they were looking at the sedan and had a conversation with Ms Smith to this effect: KEVIN: Are you alright? MS SMITH: I'd like to buy the white sedan. KEVIN: Do you have any children? MS SMITH: Yes. I've got 4. KEVIN: You don't want the white car. You want this 8 seater Commodore wagon. I'll give you that because you'll need it for the kids. 577 Ms Smith says that she remembers the conversation clearly: T, p 322, lns 39-41. She says she felt "a bit pressured by Kevin to buy the wagon" which she "really didn't want". Ms Smith says that Kevin kept emphasising ("rubbing it in") that the "wagon" would be more suitable for her and the children: T, p 324, lns 35-47; T, p 325, lns 1-4. Ms Smith accepted that the wagon would have accommodated her and her family better than the sedan but she did not want it as it was damaged: T, p 324, lns 11-14. Ms Smith felt that she: "… had to take it because of the way he was going on". She also says that she "could tell by looking at the car that it wasn't good, there were dints in the boot and the seats [were] ripped, but Kevin really told me it was a great car for me". It did not have a radio. She felt she could not just walk away because she needed a car and lived a long way away from Cairns. Kevin then said: "Do you want to try for finance, it will only take 15-20 minutes?" Ms Smith says that she did not really know what to do. She looked at her brother and he said that it was her money so it was up to her to decide whether to try and obtain finance. Kevin asked her: "How much deposit have you got?" She said: "I want to pay $1,000 deposit, I've got another $1,000 in the bank but I want to spend that on the kids". He said: "$1,000 won't be enough. You need to give me $2,000". 578 Ms Smith said that she did not want to spend that much because she had a baby due in the middle of April and had clothes and baby things on lay-by including clothing, a pram, a cot and baby seats. She wanted to spend the money on those things. She says that Kevin asked her if she could "… run back over to the Shopping Centre to get another $1,000 out of the bank". Ms Smith did so and returned to the car yard with an additional $1,000: T, p 306, lns 44-46; T, p 307, lns 1-11. She asked Kevin how much the wagon would cost. He said he "wasn't exactly sure but he thought that it would be around $6,000" or "six to seven thousand" dollars: T, 306, lns 37-38. 579 Ms Smith did not see any prices on the cars in the car yard. Ms Smith says that she does not really know much about cars and that is why she went to Supercheap with her brother, Yasserie. Ms Smith says that she does not know much about the value of cars or how much cars should cost: T, 307, lns 24-28. 580 Kevin then asked Ms Smith to "come inside" and they sat down "to do the paperwork". Ms Smith says that Kevin just "told me to come, sit down and wait. He did the paperwork with me": T, p 306, lns 30-31. Kevin asked her to provide a copy of her Centrelink statement and a bank statement. Ms Smith already had a copy of her Centrelink statement and a bank statement with her because she was intending to look around to try and buy a car. Ms Smith knew that she would need to provide a Centrelink statement and a bank statement in order to purchase a car. When she first went into Cairns to look for a car, she first went to Centrelink to get the statement and then went to the bank: T, 307, lns 42-46. She handed Kevin the Centrelink statement and bank statement. 581 The Centrelink statement is a three page document dated 5 April 2011. On the front page of the document it records that she is receiving the maximum rate Family Tax Benefit, the maximum rate Parenting Payment Single Benefit and in relation to three children she is receiving benefits assessed at 100%. The Centrelink statement contains this information concerning her previous regular entitlements and payments: Previous regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $604.51 5 Apr 2011 Pharmaceutical Allowance $6.00 5 Apr 2011 Pension Basic Supplement $20.39 5 Apr 2011 Family Tax Benefit Part A ($480.90)* $480.90 29 Mar 2011 Family Tax Benefit Part B ($136.36)* $136.36 29 Mar 2011 Large Family Supplement ($11.06)* $11.06 29 Mar 2011 Rent Assistance ($123.42)* $123.42 29 Mar 2011 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 582 The Centrelink statement contains this information concerning her future regular entitlements and payments: Future regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $605.50 19 Apr 2011 Pharmaceutical Allowance $6.00 19 Apr 2011 Pension Basic Supplement $20.40 19 Apr 2011 Family Tax Benefit Part A ($480.90)* $480.90 12 Apr 2011 Family Tax Benefit Part B ($136.36)* $136.36 12 Apr 2011 Large Family Supplement ($11.06)* $11.06 12 Apr 2011 Rent Assistance ($122.78)* $122.78 12 Apr 2011 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 583 The Centrelink statement contains information concerning deductions from payments to which Ms Smith is entitled. The deductions set out in the statement are these: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Centrepay Deductions $25.50 29 Mar 2011 Family Tax Benefit Lump Sum Advance Repayment $25.62 29 Mar 2011 Parenting Payment Single Centrepay Deductions $30.00 5 Apr 2011 Parenting Payment Single Lump Sum Advance Repayment $38.50 5 Apr 2011 584 As to these deductions, Ms Smith thought that the first item of $25.50 was probably a repayment of a Centrelink advance. As to the second item of $25.62, Ms Smith was "not too sure what that one …" was about. As to the third item of $30.00, that amount represents repayments of a partnering payment loan (a Family Tax Benefit loan) and the fourth item of $38.50 is another such loan. Ms Smith gave evidence that all four amounts were automatically deducted from her account. 585 It is not entirely clear from Ms Smith's evidence how regularly the deductions occurred (although they occurred fortnightly): T, p 308, lns 3-31. 586 The Centrelink statement also contains data concerning details of Ms Smith's income apart from Centrelink payments, in this way: Details of your Income (Not including Centrelink payments) Income Type Amount Frequency Date of Effect Financial Investment Income $0.06 Annually 20 Mar 2010 Maintenance Income $2,046.85 Annually 20 Nov 2010 587 This was the Centrelink statement that Ms Smith handed to Kevin. 588 Assuming that the entitlements are fortnightly payments, the benefits set out at [581] amount to $1,382.64 per fortnight or $2,765.28 per month. On the same assumption, the benefits set out at [582] amount to $1,383.00 per fortnight or $2,766.00 per month. Having regard to the deductions at [583] which amount to $239.24 per month, the net monthly income benefit in respect of the entitlements at [581] amounts to $2,526.04 and the net monthly income benefits in respect of the entitlements at [582] amount to $2,526.76. 589 The bank statement she handed to Kevin is a statement from the Queensland Teachers' Credit Union dated 5 April 2011. Ms Smith only had one bank account. The statement is a nine page document showing transactions in the period 4 January 2011 to 5 April 2011. 590 As to the bank statement, Ms Smith gave evidence that the first entry on 4 January 2011 of $652.24 is the Centrelink Families payment (which may be an aggregation of the Part A and Part B entitlements plus the Large Family Supplement and the Pension Basic Supplement). On 4 January, Ms Smith withdrew $150.00 at the Yarrabah Supermarket ATM to buy bread, milk and groceries etc, and another $70.00 at the same place on the same day. She also withdrew $450.00 at the Shopping Centre at Earlville on 4 January to buy things for the children. On 5 January the Cash Converters direct debit of $35.17 came out of the account. The account was then overdrawn by $32.34. On 11 January, the Centrelink Pension amount of $537.90 was paid into the account. That amount seems to approximate the Parenting Payment Single amount of $604.51 less the two Parenting Payment Single deductions of $68.50 which results in a net payment of $536.01. In any event, on the same day, Ms Smith withdrew $200.00 at the service station in Edmonton (Portsmith) and $200.00 at the Stockland Shopping Centre, Earlville. On 12 January, the Cash Converters repayment of $35.17 was debited to the account. By then, the account was again in overdraft in an amount of $47.81. On 13 January, the account was credited with $2,200.00 referenced in the transactions as "Swift-Centrelink". Ms Smith does not know what the reference is or what it means: T, p 309, lns 1-46, T, p 310, lns 1-5. 591 Having examined the pattern of transactions reflected in the bank statement, counsel for ASIC asked Ms Smith about her practice in relation to taking money out of the account. She was asked: "After you take some amount of money out, do you spend it usually at the time you're taking it out or do you carry it around with you?" She said: "Yes. … - I won't hold money on me for long". The pattern seems to be that money is expended by Ms Smith virtually immediately after it is received. It seems to happen through cash withdrawals which are then immediately expended on food, clothing, necessities, items for the children and such matters. 592 Ms Smith says that after she handed Kevin the two documents, he said "great" and "handed me the paperwork to buy the car straightaway". She also says this at paras 31 and 32 of her affidavit: 31 He had me there for about an hour or two hours. While I was inside filling out the paperwork I realised the car wasn't $6,000 it was more than $10,000. I was really worried and I told my brother. I no longer recall exactly what I said to my brother but I do recall that he was worried too. 32 I no longer recall what I said but when I raised it with Kevin he told me it meant that all the car and the suspension and everything was under warranty. I really needed the car so I decided to keep filling the forms out anyway. [emphasis added] 593 Ms Smith says at para 33 of her affidavit that once she had finished "filling out the paperwork" with Kevin he said words to this effect: "You'll have to wait a while for Colin to have a look at the paperwork and approve it". Ms Smith says: "Colin came out about 20 minutes later and gave me the thumbs up". She says he said words to this effect: Everything is fine but you won't be able to take the car today because I have to get it registered and get a roadworthy certificate done on it. I will give you a call in a couple of days when it is ready. [emphasis added] 594 At para 31 of her affidavit, Ms Smith says that Kevin was with her for about an hour to two hours. By that reference she means that the total time from when she went to the dealership to when she left was between an hour or two hours: T, p 319, lns 1-3. She says that she was "just talking [with Kevin] and doing the paperwork all in that time": T, p 319, lns 5-6. Ms Smith says that the paperwork was done inside the office. She was sitting at a desk. Kevin was sitting with her. She says that she signed more than one piece of paper when with Kevin: T, p 328, lns 4-7. 595 She says that on the second time that she went to the car yard she did not sign any documents – "only the first time". 596 Ms Smith was taken to the Credit Application Form by Dr Spence. Ms Smith affirmed her earlier evidence that she signed that form on that first day. 597 Ms Smith says that after the form had been filled out, Kevin told her to wait for 20 minutes until Colin came. Colin then came out of the office and "just gave me the thumbs up", the "okay": T, p 311, lns 30-32. Ms Smith was asked how did Colin give her the "thumbs up" and she replied that Colin "came out of one little room" and "just sat down and talked about the car" and "what to do next". Ms Smith says that she was told to "just wait" and that she "probably wouldn't get an answer till the next day, the car will be ready" or wait "a week": T, p 311, lns 30-44. Ms Smith says that she did not fill out "any more forms after that day": T, p 311, ln 46. 598 She also said that she has not seen the Preliminary Test document before: T, p 328, lns 29-31. 599 The following exchange then occurred between the Court and Ms Smith (T, p 319, lns 34-47; T, p 320, lns 1-14): HH: And what happened? Did he [Colin] walk out of the office into the car yard, or did he walk to the stair, or did you go back in the office, or how did that all happen? A: Just sat down and check the paperwork properly. HH: But that's what Colin was doing, you think? A: Yes, Colin checked it over. HH: But did he check it in front of you, or were you somewhere else? Were you with him when he was checking it? A: Just, yes, sitting down there. HH: You were still sitting down in the office were you? A: Yes. HH: And was Colin physically there looking at the documents while … you were there? A: Yes. HH: So the two of you were together in the room? A: Yes. HH: Is that right? And the person you're describing as Colin is he in court today? A: Yes. [Ms Smith pointed out Mr Hulbert] HH: And then Colin gave you the thumbs up and told you, you said, that the car needed to get a road worthiness certificate and registration and things? A: Yes. HH: And then you left the dealership after that. Is that right? A: Yes. HH: And then, later on, you went back to pick up the vehicle? A: Yes. 600 As to para 31 and Ms Smith's realisation that the car was more than $10,000 rather than $6,000, Ms Smith says she cannot recall what Kevin actually said to her about the price of the car or other conversations she may have had with Kevin that day: T, p 330, lns 3-12. Ms Smith gave evidence that she and Yasserie were worried about the price of the car: para 31; T, p 331, lns 4-14. As to para 32, Ms Smith gave evidence that she kept signing the forms because she needed a car as no other family member had one. When asked by Dr Spence whether Kevin was doing anything at this stage (the signing stage) to pressure Ms Smith into buying the car, Ms Smith said she could not remember. She was asked the same question again and answered: "No" (T, p 331, lns 34-45; T, p 332, lns 1-3). 601 Ms Smith says that on or about 15 April 2011, Kevin made a telephone call to her and said that the car was ready. She and her brother went to the car yard to pick up the vehicle. She walked inside and spoke to Kevin. He told her that she "would have to wait a little while because they were still down with the car at the tyre shop". 602 The car was then brought back to Supercheap. Kevin gave Ms Smith the keys. Ms Smith's brother drove the car out of the car yard with Ms Smith in the passenger seat. Ms Smith says this at paras 36 and 37: 36 We'd been barely driving for 20 minutes from Earlville to Woree and the car just started to shake. My brother pulled over on the side of the road and checked the wheel nuts and he reckoned that about six were missing. We looked at the car and we realised there was no wheel spanner in the car, there was a jack but no handle so my brother ran across to the phone booth to ring SuperCheap. He told them about the nuts and everything and Colin said he would come down to fix it. 37 When Colin arrived my brother said we were missing some wheel nuts. Colin had a look and went back to the yard and gave us some wheel nuts which my brother put on the car. [emphasis added] 603 Ms Smith experienced other difficulties with the vehicle. 604 She gave evidence that her sister came to visit her in the hospital. When her sister went back to the car to go home having borrowed the car, she found a note under the windscreen saying that all the coolant had leaked out of the radiator: T, p 316, lns 15-18. Ms Smith describes, in her affidavit, other difficulties she had with the vehicle. At paras 39 to 42 she says this: 39 A couple of days after I had my baby we were driving the car to Cairns to do some shopping and the head gasket on the car went. We were broken down on the side of the highway so I called Colin and he sent a tow-truck to pick it up from the side of the road. He said my gasket was gone and he said that they would replace it with a new one for me. 40 I got my car back about a week later with a new gasket. From then I still had problems. My brother, Yasserie, is a bit of a bush mechanic and he told me words to the effect "the car has been overheating because your fan for the radiator doesn't work". 41 When I first bought my car Kevin had told me that I needed to bring it to him for its first service about three months later. From about three months after I got the car, I could not drive it at all because of problems with the car. Because of all the problems I'd had with the car I decided I wasn't going to take it back to Kevin. I wanted to get a different person to look at it with a proper mechanic to find out what all the problems with the car actually were. 42 About three months after I got the car, I took my car to a mechanic at Edmonton to be serviced. It was taken to Edmonton on a tow truck. When I went to pick up the car the lady at the mechanic's reception gave me a piece of paper with all the things wrong with the car. She showed me all the problems and some they could fix and some they couldn't fix there at Edmonton. The list was almost a whole page long with the things wrong with the car. It gave me a real fright and I wanted to show Colin all the paperwork to see if some of the stuff was on warranty. I never got around to showing him, one of the reasons I didn't take it back was because I was really worried that if I took the car to him he might not give it back. 605 Ms Smith also gave evidence that the fuel pump became faulty. Ultimately, the fuel pump failed. That occurred "a while after the gasket, possibly two or three months later". Ms Smith bought a new fuel pump and installed it. However, it would not work. Ultimately, Ms Smith elected to take the car to a mechanic at Edmonton to be serviced as described at para 42 quoted at [604] of these reasons. Ms Smith says that she could not afford to fix all the problems with the vehicle: T, p 317, lns 11-13. Ms Smith accepted in oral evidence that when she called Colin to tell him that the car she had just collected was now stopped by the roadway because one of the wheels was not affixed to the car by wheel nuts, Colin came and had a look and then returned with wheel nuts. Yasserie then put the wheel on the car properly. She also accepts that Colin fixed the radiator problem. As to the head gasket problem "a couple of days after that", Ms Smith accepts that Colin also fixed that problem. It took a week. However, the car was still overheating: T, p 333, lns 41-47; T, p 334, lns 1-26. 606 Ms Smith says that when she took the car to Edmonton, she had been late in making payments a number of times. However, as soon as she had the money, she would take $100 or $200 to the Supercheap sale yard and "give it to them to make up the payments". Every time she missed a payment, a lady from Supercheap would make a telephone call to her and tell her that she had missed payments. Ms Smith would tell her that she would pay some money towards the repayments "next week". Ms Smith says that "just before Christmas 2011", she was told (by someone whose name she can no longer recall) that investigations were being made into "problems with [Kevin]" and that she ought to "stop [her] payments". She says that that statement (whatever the truth of it) caused her to take all of her money out of her bank account. She says that she was not contacted by Supercheap after she stopped making payments. She says that she was again told by "some girls in the community" that Supercheap was the subject of investigations. 607 In or about April or May 2012, while Ms Smith was moving house, her mother went to the new house and told Ms Smith that someone called "Ashley" had taken the car away. Ms Smith says that she knew Ashley to be one of "Colin's workers". She says she has not seen the car since. She says that she did not receive any paperwork warning her that the car would be taken away and nor did she receive any paperwork about the car having been taken away. Apart from the repossession of the car by Ashley, Ms Smith had previously fallen behind in her payments which resulted in the car being repossessed. She made up the payments ($1,000) and got the car back: T, p 347, lns 35-37; T, p 348, lns 1-2. 608 Ms Smith says that when she was with Kevin in the office on 6 April 2011, "they told me they wanted me to pay $200 a week in repayments". Ms Smith told Kevin that she would not be able to afford $200 and that she could only pay $100 each week. Ms Smith says that she thought she would be able to afford to pay $200 a fortnight. However, "down the track it was getting a bit hard to keep up". She says that she had to pay board and she needed food and clothes for herself and her children. At that time, she had three children in school and was paying for their lunches and "school stuff". She says that she likes her children to take a packed lunch to school so that they do not have to buy food from the tuckshop. She says that after she paid for "all this and the school fees and everything" there "just wasn't much money left to pay for the car anymore". Ms Smith also added this: "If I'm trying to keep up with the car payments sometimes I would have to go a week without buying any food and I hate doing that because I've got kids". 609 Ms Smith says that at the time she decided to buy the car she had the following expenses: (a) Board of $200 a fortnight which also covered food; (b) Electricity Bill of approximately $100 a fortnight; (c) Cash Converters Loan of approximately $70 a fortnight; (d) I did not have a mobile phone at the time; (e) Clothing for myself and my children of about $200 to $300 per month; (f) A Centrelink loan of approximately $28 a fortnight. 610 These expenses amount to approximately $523.00 per fortnight or $1,046.00 per month. 611 Ms Smith says that her payments to Cash Converters were for a loan (an advance) she had taken out on 8 November 2010 for $810.00. She was making repayments of about $70.00 a fortnight although she had missed some payments. She would try to make up for those missed payments after her next pay. The loan was paid out in full in May 2011. At the time she decided to buy the car, she did not have many assets. She had a stereo and a television which she thinks was worth about $500.00. 612 As to the documents, the Centrelink statement of 5 April 2011 contains a handwritten number on the front page of $2,995.72. 613 As to the Credit Application Form, Ms Smith says that this document was filled out by "Kevin and I" on "6 April 2011": para 51; T, p 311, lns 27-28. She says that looking at the document now, the front page seems to contain a change to the amount written in as the vehicle retail price. Page 1 of the form shows a retail price for the car of $11,990.00, a deposit of $2,000.00 and a weekly repayment of $100.00 per week. Ms Smith says that the handwriting concerning the price of the car and the deposit is not her handwriting: T, p 310, lns 30-36. She says that when she "did the paperwork" the retail price was not filled in: T, p 310, lns 41-42. 614 Page 1 of the Credit Application Form shows that Ms Smith's current employer is Centrelink; her occupation is "Home Duties" and her gross income is $2,995.72 per month. As to this document, Ms Smith says that the words "Smith" and "Kerryn" are in her handwriting. The name "Gerthel" is not in her handwriting. Her address is in her handwriting. 615 The details as to her employer and income are not in her handwriting. 616 She says she does not recall seeing anyone fill in those details. She says the writing in the "References" box on p 2 is her handwriting. 617 The writing in the "Financial Information" box on p 2 is not her handwriting. Ms Smith thinks that she recalls Kevin filling in this box while she was with him. She says that she does not understand what the Credit Application Form is. She says no-one explained it to her. 618 As mentioned earlier, there are 10 items against which financial information might be written. Three of them are filled out in the case of Ms Smith. It shows: "Rent/Mortgage: $216.00 per week"; "Personal Loan(s): Centrelink $55.51 per week"; and "Other: Cash Converters $173.33 per week". The total is shown as $444.84 per week. The document is signed on p 3 by Ms Smith and bears the date 6 April 2011. In terms of possible supporting documents within the categories recited on p 3 only, two documents are ticked, namely, the Centrelink Income Statement and the Bank Statement. 619 As to the handwritten entries in the "Financial Information" box, Ms Smith does not recall how those figures came to be entered into the document: T, p 311, lns 6-7. As to the rental amount of $216.00, Ms Smith says that she was boarding with her parents at the time. She was paying them $100.00 to help with electricity costs and $200.00 for food for the children. Ms Smith cannot recall having any conversation with anyone at the car yard in relation to her expenses, whether weekly or monthly expenses: T, p 311, lns 4-19. Ms Smith says she did not have a conversation with anyone about any loans that she had at the time: T, p 311, ln 21. 620 As to the Preliminary Test document, it shows this: Channic Pty Ltd PRELIMINARY TEST Date: 6/04/2011 Client Name: Kerryn Gerthel Smith Broker: Cash Brokers Pty Ltd Loan Purpose: Motor Vehicle Purchase $11,990 Cash Deposit $2,000 Capacity: Borrower 1 NET monthly income $2,996.50 Borrower 2 NET monthly income $0.00 Maintenance $170.57 total monthly income $3,167.07 Expenses Rent/board monthly $216.00 Living expenses $1,925.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $136.92 Other Finance $173.33 Contract Payments $0.00 Mobile Phone Prepaid Repayment this loan $433.33 total expenses $2,884.58 Surplus/Deficit $282.49 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 621 As to this document, Ms Smith says that her monthly income "looks like more than I actually get". The income also shows that Ms Smith was receiving $170.57 per month in maintenance payments. 622 Ms Smith says that she does not remember receiving the amount of $2,046.85 each year recorded as "Maintenance Income" in "November 2010" in the Centrelink statement. The annual amount of $2,046.85 represents $170.57 per month which may be the source of the Maintenance Income entry in the Preliminary Test. 623 Ms Smith says that she does not recall Kevin asking her anything about her expenses. 624 As to the Credit Contract, the Financial Table in the case of Ms Smith is in these terms: FINANCIAL TABLE Amount of credit of the loan $10,561.50 Annual percentage rate 48% per annum Total amount of interest payable $16,845.36 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 260 consisting of 259 repayments each of $105.51 Plus a Final Repayment of $79.77 Total amount of repayments $27,406.86 Date of first repayment 19/04/2011 Frequency of repayment Weekly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 15/04/2011 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 625 The Comparison Rate entry is in these terms: Comparison Rate 47.1976% per annum This rate is calculated on the $10,561.50 credit amount over a 260 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 626 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 15/04/2011 Loan Draw Down Date 15/04/2011 Loan term commencing from the Draw Down Date 260 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $550.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $9,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 627 Ms Smith says that she was asked to initial the Credit Contract at the bottom of each page on the day that she "filled in the paperwork for my car". As to the interest rate, Ms Smith says this at para 56 of her affidavit: "The first page of the document indicates that I was paying 48% interest. I know that interest is money that I have to pay on top. I didn't really know whether a 48% interest rate was good or bad when I signed the contract". 628 As to the total amount of repayments of $27,406.86, Ms Smith says that she did not know "at all" that her total repayments would be that amount. She says she first understood that her repayments were of that order when it was drawn to her attention by an ASIC representative in January 2012. She says this at para 57 of her affidavit: It makes me really shocked. I thought I would only be paying $10,000. If I had of known it was going to cost me $27,000 I wouldn't have ever got the car. I would probably have been better off waiting till I could afford a private sale. 629 As to the page of the Credit Contract dealing with obtaining legal advice that contains Box A or Box B, one of which must be completed, Ms Smith says that she recalls Kevin crossing out Box A and telling her to fill in Box B on the second half of the page. Box A is completed if the consumer chooses to obtain legal advice. Box B is completed if the consumer chooses not to obtain legal advice. Ms Smith says that she did not know that this page was concerned with the topic of obtaining legal advice. She says that Kevin did not tell her that she could get legal advice. 630 The Credit Contract is signed by Mr Hulbert. It bears the date 15 April 2011. It appears to have Ms Smith's signature above that of Mr Hulbert. Her signature is also in Box B. She has also signed the direct debit form. 631 In oral evidence, Ms Smith acknowledged that she had initialled each page of the Credit Contract. She acknowledged that she signed the page of the contract which contains the box headed Important Before You Sign Things You Must Know. She says that when she signed that page there was no other writing on the page. That page, as exhibited to her affidavit, and as it appears in the Channic loan file, also bears the signature of Mr Hulbert and the date "15/4/11". She says the date was not on the page when she signed it. The next page of the contract contains Box A and Box B which is concerned with obtaining legal advice. Ms Smith acknowledged that she signed in Box B. She says that when she did so, the document was not dated. It bears the date 15th April 2011. She says it was not already there. She says that she signed the Credit Contract on the first day that she went to Supercheap, namely, 6 April 2011: T, p 312, lns 4-30. 632 As to the circumstances in which Ms Smith signed the document, she says that she thinks that Colin gave her the document and told her to "flick through and do [her] signature at the bottom of each page". She was asked by ASIC's counsel: "And did anyone there talk to you about what was in this document?" She answered: "No": T, p 312, lns 41-42. 633 Ms Smith was then taken to p 1 of the Credit Contract and the reference to the title Consumer Loan Contract and Mortgage No: 5164. She was asked whether anyone had told her what a mortgage was. She answered: "No". She was asked: "Did you know what a mortgage is?" She answered: "No, not at that time". She was taken to the reference to "Channic Pty Ltd" and asked: "Did you know who or what Channic was?" She answered: "No". She was taken to the amount of credit being lent, $10,561.50, and was asked: "Was there any discussion between you and anyone about you borrowing that sort of money?" She answered: "No". She was taken to the reference to 48% interest per annum and was asked: "Did you know what 48% interest rate meant at that time?" She answered: "No, not at that time". She was taken to the reference to "Total Amount of Interest Payable" of $16,845.36 and was asked whether anyone had told her that the total amount of interest she was going to be paying on the loan was that amount. She said: "No". She also said that no-one had told her that she would be paying total repayments of $27,406.86. The proposition was put to her that if the deposit of $2,000.00 is taken into account, the total amount paid by her would be $29,406.86. She was asked whether anyone had told her that she would be paying that amount for the car. She said: "No". She said that if she had been told that information, she would not have bought the car: T, p 313, lns 1-46. 634 Ms Smith was taken to the "Comparison Rate" on p 1. She said that she did not know what a comparison rate is. As to the Schedule on p 2, she gave evidence that she did not know what the draw-down date was. She said that no-one had told her about the fees of $21.50 she would have to pay for a loan: T, p 314, lns 3-21. 635 Ms Smith gave evidence that she did not know what or who Cash Brokers was or were. Nor did she know what brokerage was or what the term meant. She gave evidence that no-one talked to her about paying $550.00 in relation to "getting finance". She gave evidence that she did not "read any of the document" when she was signing it: T, p 314, lns 23-37. 636 As to the CBPL invoice for brokerage fees dated 6 April 2011 for $550.00, Ms Smith says this at para 59 of her affidavit: "I don't think I got a copy of this document on or before 15 April 2011". She says this at para 60 of her affidavit about the document: I don't understand what this document is and no-one told me anything about it. I don't know what brokerage means. I was never spoken to about any company called Cash Brokers Pty Ltd by Colin or Kevin. I thought both Colin and Kevin worked for SuperCheap. The only company I know of is SuperCheap. I did not know I was borrowing any money to pay for brokerage. If I knew I had to borrow money for Brokerage I wouldn't have. This is shocking, Kevin never explained any of this to me he just rushed me and told me to sign the pages. I even tried to sign my full name but he just told me "just initials is quicker". 637 Returning to the Credit Contract, Ms Smith was taken to Box B which she signed. That box suggests that Ms Smith had chosen not to obtain legal advice. Ms Smith gave evidence that she did not draw a line through Box A, which would have been completed had she chosen to obtain legal advice. Ms Smith gave evidence that she could not recall anything being said about obtaining legal advice. Ms Smith gave evidence that no-one talked to her about getting legal advice before entering into the agreement. She said that no-one talked to her about taking the agreement away and reading it. 638 Ms Smith again confirmed that she signed the document on the first day that she went to the car yard: T, p 314, lns 39-46; T, p 315, lns 1-11. 639 Ms Smith was again taken to the Credit Contract by Dr Spence. He took her to her signature on it and the date written on the document of 15/4/11. Dr Spence then put this question: "So you signed the contract, did you, on that day – 15 April 2011?" She said: "Yes": T, p 333, ln 37. Dr Spence returned to this topic again later in the cross-examination. He took Ms Smith to the number of repayments and the amount of each repayment ($105.51) and then asked: "Did you have a conversation with Colin on 15 April at about the time you signed the contract?" She answered: "Yes, but I didn't – I can't remember talking about this [the repayments]": T, p 336, lns 19-31. Ms Smith seems to have been responding, in this answer, to the point of whether a conversation occurred although the question asserts a signing by her on 15 April 2011. 640 The topics discussed by Ms Smith and Mr Hulbert were examined by Dr Spence with Ms Smith. I have already noted that Dr Spence's questions proceeded on the footing that exchanges occurred on 15 April 2011 and that Ms Smith signed the contract on that date. Ms Smith gave evidence that she had a conversation with Colin that day. He asked her to "initial all the papers down the bottom". She cannot recall how long she was with Colin. She thinks it was "20 minutes" although "it could have been up to an hour, say": T, p 336, lns 36-45; T, p 337, lns 1-6. 641 Ms Smith accepted that after she signed the contract she knew that each repayment was $105.51 because "we discussed it" and that was something Colin had told her: T, p 337, lns 16-22. 642 Ms Smith could not remember Colin telling her of the amount of credit under the contract of $10,561.50. Nor could she remember Colin talking to her about the 48% annual interest rate although she said: "He could have. I just don't remember": T, p 337, lns 42-47. 643 She could not remember Colin talking to her about the total amount of interest payable of $16,845.36. In re-examination, Ms Smith accepted that Mr Hulbert "might have" told her of the 48% interest rate but she could not remember: T, p 361, lns 9-10. Nor could she recall Colin talking to her about the total repayments under the contract being an amount of $27,406.86. Ms Smith was asked in re-examination this: "… if they had told you [of the $27,406.86], do you think you would remember being told that?" She answered: "No": T, p 360, lns 39-46; T, p 361, lns 1-4. 644 Ms Smith could not remember Colin talking to her about a brokerage fee payable to Cash Brokers of $550.00: T, p 338, lns 27-36. Ms Smith gave evidence that she could not recall these conversations put to her by Dr Spence although she embraced Dr Spence's proposition that she could nevertheless recall that she "… just went into the office and virtually straightaway signed and initialled the contract". She said in response: "Yes. I don't remember a conversation, just doing the paperwork": T, p 339, lns 10-14. 645 Dr Spence suggested to her that Mr Hulbert took her "through the things that are written down in that loan contract before [she] signed and initialled it". She said she could not remember although "it could have been like that". She accepted that the document was "sitting on a table so that [she] could initial it and sign it" and she did so in two places and turned over every page to initial each page on the corners: T, p 339, lns 16-35. 646 Ms Smith says she had a quick read through the document: T, p 340, ln 1. 647 Ms Smith says she does not remember Mr Hulbert telling her, as Dr Spence put to her, that she "could take some time to read the contract if [she] wanted to" although she accepted that he "could have said that to her": T, p 340, lns 7-10. Ms Smith rejected and denied the proposition that Mr Hulbert told her she could take the contract away and have a look at it at home and come back another day: T, p 340, lns 12-18. 648 Ms Smith has no recollection of Mr Hulbert telling her, as put to her by Dr Spence, that she "could get some advice about the contract if [she] wanted to and [she could] come back later": T, p 340, lns 20-21. 649 Ms Smith agreed that there could have been a lot of conversation with Mr Hulbert. She said that she "just does not remember": T, p 340, lns 27-28. 650 Ms Smith was taken to pp 34 and 35 of her affidavit (Tab 7), where the Credit Contract is exhibited, which set out a schedule showing the weekly date for each payment and the amount of each payment of $105.51 (except for the payment on 8 October 2013 which is $79.77). Ms Smith thinks that she saw these pages when she initialled each of them. She accepted that she realised that the same figure, all the way down each column, was the payment she had to make: T, p 341, lns 1-2. Ms Smith accepted that it may have been a "good idea" to have had a "good look" at the contract before signing it. She said, however, that she did not do so: T, p 341, lns 14-19. Nor did she have a "good look" at the contract after signing it when she was at home. Ms Smith agreed with Dr Spence that Mr Hulbert told her it would be a good idea for her to read the contract although when then immediately asked whether she was agreeing with that proposition, she answered: "Not too sure": T, p 342, lns 14-18. 651 Ms Smith then accepted the next proposition put to her by Dr Spence that if she had a conversation with Mr Hulbert about the contract "it would be reasonable that he might have told [her]" to "read the contract". She added, however, that she did not read it, in fact: T, p 342, lns 24-25. 652 Ms Smith was then taken to the Information Statement in the contract (at p 45 of her affidavit (Tab 7)). It contains a sub-heading: The Contract. That section sets out information about the contract. Ms Smith was taken by Dr Spence to the statements at points 1 to 9 and was simply asked to note the matters set out there. 653 The Information Statement also contains a sub-heading: Mortgages. Ms Smith accepted that the points made under that sub-heading explain what a mortgage is, although she did not read the contract. 654 Ms Smith was taken to the content under the further sub-heading: General and the statement at point 25 under that sub-heading: "You should also READ YOUR CONTRACT". Dr Spence then again put to Ms Smith that Mr Hulbert had "suggested" she should read the contract and that he had "said" to her that she should read the contract. Ms Smith agreed with both propositions (T, p 344, lns 30-36) although she immediately then agreed with Dr Spence's next proposition: "But you can't remember whether he told you that or not, in this case" [emphasis added]: T, p 344, ln 38. 655 It should be noted that the reference, at point 25 under the sub-heading General, directing the reader that, he or she should also read your contract, is, of course, a statement made in the context of an answer to the question posed in the document: "Do I have any other rights and obligations?" [emphasis added] At point 25, the document answers the question by saying that apart from those rights and obligations imposed by law, the answer can be found by reading the contract. 656 Dr Spence also put to Ms Smith that the "things written" under the sub-heading General were "things that Colin told you about when you were talking": T, p 346, lns 38-40. The "things" written under that sub-heading consist of: first, four points – What do I do if I can not make a repayment?; What if my credit provider and I can not agree on a suitable arrangement?; Can my credit provider take action against me?; Do I have any other rights and obligations?; second, complaints about the credit provider; third external dispute resolution. 657 As to the proposition that she had been told about the things so written, Ms Smith said: "No, I don't remember" although he "might have … yes, but I don't remember": T, p 346, lns 42-46. 658 Dr Spence then returned to the nine points made under the sub-heading The Contract to which he had taken Ms Smith and asked her: "Is the situation the same – you can't remember whether Colin had conversation with you about these things … or not? Is that your evidence?" [emphasis added]: T, p 347, lns 5-8. Ms Smith answered: "Yes, I don't remember": T, p 347, lns 6-8. 659 At points 1 to 9, quite specific questions are asked in the document coupled with a textual discussion of the answer to each question. Implicit in Dr Spence's question to Ms Smith is the proposition that Mr Hulbert, in conversation, told Ms Smith about the things written at points 1 to 9. In other words, Mr Hulbert's case is that he put these things to Ms Smith. 660 The final document Ms Smith exhibits to her affidavit is a document described as "AHA New Start Finance Trust: Loan Ledger for Loan 5164". 661 Ms Smith says that this document sets out the repayments she made in relation to the loan she obtained to buy the car. The document shows direct debit payments of $150.00 in the period 19 April 2011 to approximately 7 June 2011. Thereafter the direct debits in the main seem to be in amounts of $105.00. The weekly repayment under the Credit Contract is $105.51. 662 As to the documents on the CBPL file, these things should be noted. 663 The standard loan application letter (Document 1) from Mr Humphreys for CBPL to Channic is dated 6 April 2011. It says that Ms Smith has requested a loan for $9,990.00 and she has sought repayments of approximately $100.00 per week. 664 Document 2 is a copy of the Credit Application Form. 665 Document 3 is a copy of the AHA Finance privacy policy statement signed by Ms Smith and dated 6 April 2011. The file contains identification documents (Document 4). 666 The next document is the Centrelink statement (Document 5). 667 Document 6 is the CBPL Preliminary Test. 668 The next document (Document 7) is a letter dated 6 April 2011 from Mr Hulbert for Channic to CBPL advising that Channic has made an assessment that the Credit Contract proposed for Ms Smith is not unsuitable for her. 669 The final document (Document 8) is the CBPL invoice addressed to Ms Smith dated 6 April 2011 for brokerage fees in an amount of $550.00. 670 As to the Channic loan file, it contains a copy of the loan application letter, the Credit Application Form, the AHA finance privacy policy form, identification material and the Centrelink statement of 5 April 2011. It also contains a copy of the bank statement Ms Smith says she gave to Kevin (Document 14). It contains a copy of the CBPL Preliminary Test. It contains a Veda credit check report dated 6 April 2011. 671 The Channic Credit Suitability Assessment is dated 6 April 2011. It recites that Channic made reasonable inquiries about the customer's financial situation and needs and objectives. It recites that the Loan Inquiry Checklist confirms the inquiries made by Channic. It recites that Channic took reasonable steps to verify the consumer's financial situation in accordance with the Verification Checklist. The document recites available income per month of $3,167.07. It recites that the customer is seeking credit of $10,561.50 over a period of 260 weeks at an annual interest rate of 48%, in order to purchase the motor vehicle. The document is signed by Mr Hulbert. 672 As to the Loan Inquiry Checklist, Pt B records that inquiries were made by examining the loan application form obtained "via broker". As to that source, seven inquiries were made. They are: Ms Smith's current amount and source of income or benefits; the nature or length of her employment; her fixed expenses; her variable expenses; her circumstances in terms of age, number of dependents; her assets including their nature and value; and her liabilities including their nature and value. The supporting documents from the customer (which are the bank statement and the Centrelink statement) are the source of inquiries concerning Ms Smith's income and benefits. Searches are the source of the inquiry concerning Ms Smith's credit history (which is the Veda search). 673 As to Pt C concerning the requirements and objectives of Ms Smith, the document says that the requirements or objectives of Ms Smith were concerned with the amount of credit she needed; the time frame for which the credit was required; the purpose of obtaining the credit and the benefit to her of obtaining it; particular product features; and the objective of ensuring that the customer "understands the costs of these features and any additional risks". That document dated 6 April 2011 is signed by Mr Hulbert. 674 The next document is the Verification Checklist. It recites that data relating to six topics were verified from the loan application form (which is the Credit Application Form). The topics verified were: personal details; employment and other income sources; other loans and payouts; income and expenses; assets and liabilities; and Ms Smith's personal circumstances. The Centrelink statements were the source of verification of Ms Smith's sources of income and expenses and employment. The Veda credit report provided information about Ms Smith's credit history. That document is dated 6 April 2011 and signed by Mr Hulbert. 675 Channic's letter to CBPL of 6 April 2011 advising of Channic's assessment that the Credit Contract is not unsuitable for Ms Smith is Document 20. 676 Document 21 is the Credit Contract and Document 22 is Supercheap's invoice of 15 April 2011 for the sale of the car to Ms Smith for $11,990.00. A copy of the CBPL brokerage fee invoice is also held on file (Document 23). 677 As to the bank statement, Ms Smith gave evidence that she was receiving two Centrelink payments at the time she engaged in these events. The first was the "Families" benefit which is described as "Aus Gov Families" in the transactions line in the statement, of $652.24 (4 January 2011). It varied as, on 1 February 2011, it was $651.10. More significantly, the Families payment two weeks after the 4 January payment (18 January) was $982.33. However, the fortnightly payments regularly appear thereafter as $651.10. The Families benefit amount includes a supplement and essentially relates to the children the recipient is supporting. It was paid fortnightly. 678 The second benefit was the "Parenting Payment Single" benefit described in the transaction line as "Ctrlink Pension" at $537.90. It was also paid fortnightly. The bank statement shows a balance on 5 April 2011 of $4,409.67 and then a cash withdrawal of $2,000.00. Ms Smith says that this withdrawal was the money she used for the deposit on the car. The account also shows a credit of $5,000.00 on 4 April 2011. It was an insurance payout for damage to white goods caused by Cyclone Yasi. 679 Ms Smith, however, agreed with Dr Spence that she had previously said that her fortnightly income was between $1,660.00 and $1,760.00: T, p 358, lns 20-22. 680 As to her expenses, Ms Smith says at para 54 of her affidavit that she does not recall Kevin asking her anything about her expenses. Dr Spence took Ms Smith to the "Personal Loan(s): Centrelink $55.51" entry in the Credit Application Form and suggested to her that she was in fact receiving "a lot more" from Centrelink. 681 This entry, however, is a loan repayment expense not a benefit receipt. 682 Dr Spence then took Ms Smith to her signature at p 3 of that document and the date of "6-4-11" and asked her to agree that p 2 does have some expenses entries in it. The issue, on the evidence however, was whether there were any entries in the "Financial Information" box when she signed it. 683 As to the "Cash Converters" entry of $173.33 per week, Ms Smith was asked in re-examination whether she was paying "anything close to that per week". She said: "No". Her earlier evidence was that she was paying $70.00 per fortnight to Cash Converters: T, p 359, lns 7-14; para 11 of her affidavit. 684 In re-examination, however, Ms Smith gave evidence that she signed documents on two occasions that she went to the car yard. There were three in all including the collection of the vehicle. She could not remember which of the two occasions they were: T, p 359, lns 36-39. She was also questioned about the date of signing the Credit Contract. Ms Smith had agreed with Dr Spence in cross-examination that she had signed it on 15 April 2011. Ms Smith had no recollection, apart from the date written on the contract, of whether she signed it on that date. 685 She gave evidence that she recalled that the date was "on the contract" when she signed it: T, p 361, lns 42-47; T, p 361, lns 1-3. 686 One final topic remains. 687 Ms Smith was taken to the PAMD Act documents. She accepted that she had signed the sequence of documents at Ex 20. However, Ms Smith gave evidence that she did not remember when she signed them although it was on one of the occasions when she was at the car yard. Ms Smith said she did not know what a "statutory warranty" is: T, p 359, lns 16-27; T, p 361, lns 22-26. PART 11: THE EVIDENCE OF mr WILLIAM DAMIEN NOBLE (CALLED "DAMIEN") AND ms JOAN CECILY NOBLE 688 Joan Cecily Noble swore an affidavit in the proceedings on 16 June 2014. In that affidavit, she says this. I will also make reference to Mrs Noble's oral evidence. 689 She was born on 13 October 1966. She was 44 years of age when she first engaged with Supercheap. She is unemployed and receives Centrelink payments. She has never had a job, and as she puts it, "not even casual work". She relies upon Centrelink benefits. She went to school "up until Year 10". She says that she can speak English "alright". She can read and write but she needs to wear glasses. She says that if she has something long to read such as a letter, she usually gets someone else to read it to her to help her understand it. She is married to William Damien Noble and together they have 10 children. The five youngest children live with Mr and Mrs Noble and at the date of her affidavit their children were aged 17, 12, 11, 10 and 7. Her 25 year old son is profoundly deaf. 690 Mr and Mrs Noble and the five youngest children live at Yarrabah in Aboriginal Community Housing. 691 Mrs Noble has essentially lived there all her life. 692 In March 2011, Mrs Noble received about $3,000.00 which was a refund she received from the Djarragun School. The school had been charging Mrs Noble amounts since 2006 for one of her daughters who attended the school. However, Mrs Noble's daughter had not been attending that school for some time as she had been receiving her schooling in Yarrabah. Accordingly, a refund was due to Mrs Noble. The refund was deposited into Mrs Noble's bank account. Shortly after receiving that money, Mr and Mrs Noble decided to buy a car. They did not have a car at that time. They thought it would be good to have a car, especially so that Mrs Noble could transport her disabled son. Mr Noble wanted to buy a Commodore. However, Mr and Mrs Noble needed "something that could fit the whole family so we needed seven seats". They wanted to spend the $3,000.00 to buy a car. They had previously owned a car in 2008. However, it had broken down. They had paid $3,000.00 for that car from a car yard in Bungalow. They did not have a loan for that purchase. They paid no interest. The car came with a warranty although the warranty expired after three months from the date of purchase. 693 However, now she was looking for a bigger family car. 694 Mr Noble's niece, Elsa Dabah, had purchased a car from Supercheap. Ms Dabah told Mrs Noble to speak to a man named "Colin". Ms Dabah told Mrs Noble that she could put down (as a deposit) the $3,000.00 she had received and "pay the rest later". Mrs Noble says that she did not know how much she might need to pay to purchase a car. Nevertheless, the car had to be "big enough to fit the family". However, she only wanted to pay $3,000.00 for the car: T, p 378, lns 42-43. Mrs Noble had that notion because she had been able to buy a station wagon from a dealer at Bungalow for $3,000.00 although she could not recall the make of the car. She had paid a deposit at that time of $250.00 and thereafter paid $250.00 a week until it was paid off. She then took possession of the car. Before that, Mr Noble had also purchased a car for $3,000.00 from the same Bungalow dealer. He paid cash for it from the proceeds of a tax refund. There is some suggestion in Mrs Noble's evidence that she may have had use of the car she bought previously, before the final payment although she described the arrangement as "like a lay-by". 695 On 2 March 2011, Mrs Noble, together with Mr Noble and Ms Dabah, went to the Supercheap car yard. Ms Dabah had a conversation with Colin to begin with. She talked to Colin in the office while Mrs Noble was outside waiting. Colin and Ms Dabah then came outside. Colin then spoke with Mr and Mrs Noble. They were looking at a red Ford. However, it was not big enough. Colin asked them what they were looking for and Mrs Noble said: "We want a family car to get to Cairns and to go out fishing and pick up relatives and stuff. But it has to be big enough to fit all the family". 696 Mrs Noble says that there was no car at the Mulgrave Road site which was big enough to fit all the family. Colin then took Mr and Mrs Noble and Ms Dabah to another car yard. There was no suitable car there either. They all then went back to the Mulgrave Road car yard. Mrs Noble says that Colin then made some telephone calls about a Mitsubishi Pajero. A little while later, a fellow drove a Pajero into the car yard. In recounting this exchange in her oral evidence, Mrs Noble refers to "Colin" and on one occasion she refers to "Kevin": T, p 365, ln 26. Colin asked Mr and Mrs Noble whether they would like this vehicle. Mrs Noble thought she would like it because it had seven seats. Colin then said: "For this Pajero I'll charge you 10 grand". Mrs Noble said she only had $3,000.00. Colin told her she could put that down as a deposit and she agreed: T, p 366, lns 1-6. 697 Mrs Noble says that Colin then took them up to his office and "we had to sign some paperwork". She also says: There was another man there named Kevin. He was kind of there just asking how things were going and that, but we mainly dealt with Colin. 698 Mrs Noble says that as they were sitting down, Colin asked Mr and Mrs Noble for their Centrelink statement and bank statement: T, p 366, lns 10-13. He asked about their Centrelink payments. He asked Mrs Noble to go to the Centrelink office and get a statement showing their entitlements to payments. Mrs Noble says that they then went over to the Centrelink office, obtained the statements and came back to the car yard to see Colin. The Centrelink office was the next building straight across from the car yard: T, p 366, lns 15-18. She says that she gave the Centrelink statements for both of them to Colin. She says she did not go and get a bank statement as well: T, p 366, lns 20-25. 699 Mrs Noble's Centrelink statement is dated 2 March 2011. It shows that she has a partner (Mr Noble). She is entitled to the maximum rate Family Tax Benefit and the maximum rate Parenting Payment (Partnered). Her benefits are based upon a 100% entitlement in respect of five children. 700 The Centrelink statement contains the following information concerning Mrs Noble's previous regular entitlements and payments: Previous regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Partnered $415.86 22 Feb 2011 GST Component $8.14 22 Feb 2011 Family Tax Benefit Part A ($849.66)* $848.76 1 Mar 2011 Family Tax Benefit Part B ($57.68)* $57.62 1 Mar 2011 Large Family Supplement ($33.18)* $33.15 1 Mar 2011 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 701 The Centrelink statement contains the following information concerning Mrs Noble's future regular entitlements and payments: Future regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Partnered $415.86 8 Mar 2011 GST Component $8.14 8 Mar 2011 Family Tax Benefit Part A ($849.66)* $848.76 15 Mar 2011 Family Tax Benefit Part B ($57.68)* $57.62 15 Mar 2011 Large Family Supplement ($33.18)* $33.15 15 Mar 2011 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 702 The Centrelink statement contains information concerning deductions from payments to which Mrs Noble is entitled. The deductions set out in the statement are these: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Centrepay Deductions $100.00 1 Mar 2011 Parenting Payment Partnered Centrepay Deductions $71.50 22 Feb 2011 703 Mr Noble's Centrelink statement is also dated 2 March 2011. It shows that he has a partner (Mrs Noble). He is entitled to the maximum rate Newstart Allowance. The number of children assessed for the purposes of Mr Noble's entitlements is zero. Mr Noble's previous regular entitlements and payments were these: Previous regular entitlements and payments Payment Type Amount Date Paid Newstart Allowance $415.86 21 Feb 2011 GST Component $8.14 21 Feb 2011 704 Mr Noble's future regular entitlements and payments are these: Future regular entitlements and payments Payment Type Amount Date Paid Newstart Allowance $415.86 7 Mar 2011 GST Component $8.14 7 Mar 2011 705 The deductions from Mr Noble's entitlements and payments are these: Deductions from your payment Payment Type Deduction Amount Date Paid Newstart Allowance Centrepay Deductions $100.00 21 Feb 2011 706 Page 1 of Mrs Noble's Centrelink statement is endorsed with handwriting showing $2,954.31. Mr Noble's Centrelink statement is endorsed with handwriting showing $918.66. 707 Mrs Noble's future regular entitlements amount to $1,355.39 (leaving aside the GST item) or $2,710.78 per month according to the Centrelink statement. The deductions from her entitlements seem to be $171.50. If those deductions are monthly items, the net income is $2,539.28. If those deductions are fortnightly amounts, the monthly deduction would be $343.00 in which event the net monthly income would be $2,367.78. Mrs Noble's only income is the Centrelink benefits. 708 Mr Noble's future regular entitlements and payments amount to $415.86 or $831.72 per month (leaving aside the GST item) according to the Centrelink statement. The deductions from Mr Noble's entitlements amount to either $100.00 or $200.00 per month in which event the net monthly income is either $731.72 or $631.72. Mr Noble's only income is the Centrelink benefits. 709 These Centrelink statements were handed by Mrs Noble to Colin. 710 Mrs Noble says that Colin had a look at the statements. Mrs Noble says that she then had a conversation with Colin "about my money situation". Colin asked her whether she had any loans and Mrs Noble said that she had a loan with the Commonwealth Bank with repayments of $54.00 per fortnight although she says she told Colin she had "just finished the bank loan": T, p 367, lns 9-10. Colin asked her about "financial stuff"; her income and her expenses: T, p 367, lns 9-14. Mrs Noble told Colin that she spends about $200.00 to $300.00 each fortnight on food with two adults and five children in the house. She says that Colin did not ask her about any other expenses such as school fees for the children although they did talk about "lunch money". She says that Colin did not ask her whether she was saving any money or putting money aside to save for a car. She says that Colin did make a note of her bank account number although he did not again ask her for a copy of any bank statements: para 21. 711 Mrs Noble says this: "Colin filled out some details on some forms and asked me to fill in some parts of the form and Damien [Mr Noble] to fill out some parts of the form". Mrs Noble refers to two Credit Application Forms. One form is in Mr Noble's name and a second form is in Mrs Noble's name. 712 As to the Credit Application Form in Mr Noble's name, p 1 shows a vehicle retail price of $10,990.00 and a deposit of $3,000.00. It shows gross income of $918.66 per month which is also the handwritten amount on Mr Noble's Centrelink Statement. The handwritten income reference on the form is not the handwriting of either Mr Noble or Mrs Noble. The document is signed by William Noble and also by Joan Noble: T, p 367, lns 39-41. Mrs Noble says that the only handwriting of Mr Noble on p 1 is just his name; T, p 367, ln 34. 713 As to the Credit Application Form in Mrs Noble's name, p 1 shows no vehicle retail price or any deposit. It shows gross income of $2,954.31 per month which is also the handwritten amount on Mrs Noble's Centrelink Statement. The handwritten income reference on the form is not the handwriting of either Mr Noble or Mrs Noble. 714 As to Mr Noble's Credit Application Form, there is no p 2 with the usual "Financial Information" and "References" section. On p 3, there is a handwritten note "missing page 2". 715 As to Mrs Noble's Credit Application Form, the only entries in the Financial Information Table on p 2 are these: "… know[n] Credit Defaults: No"; "Credit Card(s): $110.00 per week"; "Food: $200 per week"; "Personal Loan(s): C.B.A. $54.80 per week". Of the possible supporting documents, the two documents supplied are a copy of the driver's licence for Mrs Noble and her Centrelink income statement. The document is signed Joan Noble and dated 2 March 2011. It is not signed by Mr Noble. 716 In her oral evidence, Mrs Noble says that she did not write the names of the referees in the References box. As to the entries in the Financial Information box, Mrs Noble said she did not have a credit card at the time. As to the "Food" line, she says she was spending maybe $200.00 per week on food. She says that she had rent and electricity expenses and school loans. Clothing expenses amounted to $200.00 per month. For her expenses generally, see [749] of these reasons. 717 Mrs Noble says she had a discussion about her expenses with Colin. In the office, Mr and Mrs Noble sat on one side of the table. Mrs Noble gave evidence that there was some insistence that Colin (or possibly Kevin) fill out "this form" (the Credit Application Form): T, p 369, lns 14-19. 718 As to the Credit Contract, the parties to it are Channic and Mr Noble as Borrower/Mortgagor No. 1 and Mrs Noble as Borrower/Mortgagor No. 2. The details in the Financial Information Table are these: FINANCIAL TABLE Amount of credit of the loan $8,561.50 Annual percentage rate 48% per annum Total amount of interest payable $8,310.72 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 85 consisting of 84 repayments each of $198.56 Plus a Final Repayment of $193.18 Total amount of repayments $16,872.22 Date of first repayment 15/03/2011 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 2/03/2011 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 719 The Comparison Rate entry is in these terms: Comparison Rate 47.6141% per annum This rate is calculated on the $8,561.50 credit amount over a 169 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 720 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 2/03/2011 Loan Draw Down Date 2/03/2011 Loan term commencing from the Draw Down Date 169 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $550.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $7,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 721 The Credit Contract is initialled by Mr and Mrs Noble at the foot of each page. It is signed by them on p 7 and witnessed by Mr Hulbert. The contract is dated 2 March 2011. It is signed for Channic by Mr Hulbert on p 3. On the topic of obtaining legal advice, Box A on p 8 is crossed out. Box B, by which Mr and Mrs Noble chose not to obtain legal advice, is signed by each of them and dated 2 March 2011. The PayGate direct debit request (p 21 of the contract) is signed by Mrs Noble only and dated 2 March 2011. 722 As to the Credit Contract, Mrs Noble says this concerning her engagement with Mr Hulbert in the signing process, at paras 28 to 31: 28 There was a lot to sign and I didn't get to read anything before I signed it. Then he pointed to a piece of paper and said we were paying him something like 18 grand. I just sat there quiet. I wasn't sure what to say. I thought the car was 10 grand, not 18 grand. I was confused. 29 Colin then said: "You have to pay $199 a fortnight until 2014". I thought that was pretty expensive. I didn't think that I could afford that. I asked him: "Can you take it monthly instead?" and Colin said: "We don't do it that way". 30 Colin said: "If you want the car the same day there will be no cooling off or warranty." I said: "If anything goes wrong, can we bring it in for you to fix it?" He said: "Yes, but it will cost you extra". 31 After that, he gave us the keys and some paperwork. We drove the Pajero home that afternoon. [emphasis added] 723 In para 31 quoted above, Mrs Noble refers to having been given "some paperwork" by Colin. She says that she kept all of the paperwork and brought it into the office of the Indigenous Consumer Assistance Network ("ICAN") in Yarrabah in November 2011. She says that she only had two documents. The first document is a two page document entitled "Contract to Buy a Motor Vehicle". The document is signed by Mr Noble and Mrs Noble and dated 2 March 2011. It is signed for Supercheap by Mr Hulbert. It recites a vehicle price of $9,610.50 and fees such as registration, stamp duty etc, of $379.50. It recites an "Extended Warranty" and a price of $1,000.00 resulting in a purchase total of $10,990.00. As to the settlement details, it recites the total purchase price and a financed amount of $7,990.00 after recognising a deposit of $3,000.00. 724 The second document is the 21 page Credit Contract formally described as Consumer Loan Contract and Mortgage No: 5140. 725 As to these documents, Mrs Noble says this at para 35 of her affidavit: I have never read these documents before. I didn't read them before I signed them. I don't know what's in there. 726 As to the interest rate of 48%, Mrs Noble says this at para 36 of her affidavit: Page 1 of the [Credit Contract] says I was charged 48% interest. I now know that interest means extra money I have to pay. I don't know what 48% interest means though, I don't know how they come to that or if it's good or bad. 727 As to the brokerage, Mrs Noble says this at para 37 of her affidavit: On page 2 of the [Credit Contract] it states that I paid $550 to Cash Brokers Pty Ltd for a brokerage. I don't know who Cash Brokers are or what a brokerage is. I didn't want to borrow money to pay anyone $550. 728 As to the CBPL invoice for brokerage fees, Mrs Noble says that she has not seen this document before notwithstanding that her name and address appear on the document. She says that she was not aware that she had been charged a $550 brokerage fee. As to the Supercheap tax invoice for the sale of the car, Mrs Noble says that she has not seen the document before notwithstanding that her name and that of Mr Noble appear on the document with their address endorsed. The invoice shows a total purchase price of $10,990.00. The tax invoice also shows that the purchase price includes an extended warranty for $1,000.00. As to that, Mrs Noble says this at para 40 of her affidavit: I wasn't aware that I was paying $1,000 for a warranty, in fact Colin told me there was going to be no warranty because I was taking the car today. I didn't get any paperwork about any warranty. 729 At para 41 of her affidavit, Mrs Noble refers to a document described as "Credit Guide". It also has the name of Channic at the top of the document. The document recites this: We are required to give you this guide by law. It acknowledges your right to ask us about any assessment we may make, our financial services and where appropriate, the recommendation of using one loan product over another. In the unlikely event you may be dissatisfied with what we do or have done, this guide also provides direction on what you need to do to remedy your dissatisfaction. 730 As to this document, Mrs Noble says that her initials appear on the document. Presumably, the initials "WN" are those of Mr William Noble. Mrs Noble says that she does not remember "getting a copy of this document". 731 At para 44 of her affidavit, Mrs Noble refers to another document entitled "Acknowledgement and Consent for Receipt of Electronically Transmitted Documents". The document recites the name of Mr William Noble. Mrs Noble says that her signature appears on the bottom of the document. The crossed out mobile phone number is that of Mr Noble's niece, Ms Dabah. 732 In her oral evidence, Mrs Noble made a gesture illustrating that when signing the Credit Contract she was lifting up the corners of the document and signing each page. Mrs Noble was taken to the Credit Contract. She identified her initials and the initials of her husband at the foot of each page. When signing, both Mr and Mrs Noble were present. Ms Elsa Dabah was "just sitting on the side": T, p 370, lns 15-19. Colin was there: T, p 369, ln 12. Mrs Noble says that the Credit Contract was not explained to her: T, p 370, lns 6-10. She does not know what the term "mortgage" is. She does not know what "Channic was" or "who they were": T, p 370, lns 24-31. She says that no-one explained to her that the amount of the loan was or would be $8,561.50: T, p 370, lns 36-42. She gave evidence that she does not know what the interest rate on the loan is or whether an interest rate of 48% is a good or a bad rate: T, p 370, lns 44-46. She says that no-one told her that on top of her deposit of $3,000.00, the total amount of her repayments would be $16,872.22: T, p 371, lns 1-7. Mrs Noble thought she would be paying "10 grand": T, p 371, ln 9. Mrs Noble says she does not know who Cash Brokers is or were and no-one spoke to her about "brokerage": T, p 371, lns 16-19. Mrs Noble says she does not know what brokerage is: T, p 371, ln 21. Mrs Noble also says that she does not recall anyone talking to her about whether she should read the contract. Nor did anyone tell her to read it before signing it. She says no-one told her about whether she should go and seek legal advice before signing it: T, p 371, lns 23-28. 733 Mrs Noble says there was some discussion with Colin about the fortnightly repayment of $198.56. Mrs Noble wanted to pay monthly because it seemed to her to be "much easier". She says Colin told her it had to be fortnightly and the repayment would be deducted out of her Centrelink payment: T, p 372, lns 13-17. 734 In cross-examination, Mrs Noble affirmed her earlier evidence at para 26 of her affidavit and said that Colin just flicked through the pages of some of the documents and told her and her husband to sign: T, p 390, lns 36-38. Dr Spence put to her that those things did not happen. She said: "It did": T, p 390, lns 40-41. 735 As to the Credit Contract, Mrs Noble put it this way at T, p 390, lns 45-47: Q: Didn't [he] tell you anything about what was in the contract? A: He just told us to sign and said how much that thing – how much the truck would be, 10 grand. He just said just sign this part here and just flicked to another one, then he said sign there. 736 Mrs Noble was asked: "Weren't you curious to see what was in the contract?" She answered: "No" (T, p 391, ln 1). Mrs Noble said that she expected to sign a contract with Colin (T, p 391, lns 31-32; lns 38-39) and she and her husband signed a contract: T, p 392, ln 6. Mrs Noble was taken by Dr Spence to her assertion in para 28 of her affidavit that Colin pointed to a piece of paper and told them they would be paying "something like 18 grand". He also took her to para 29 and the assertion that Colin told them they would have to pay $199.00 a fortnight until 2014. Mrs Noble affirmed the reference to Colin having pointed to a piece of paper and having said that the amount to be paid would be "something like 18 grand". She affirmed that she thought they would be paying "10 grand" (T, p 394, lns 38-41) and that they just sat there quietly not sure what to say to Colin when he said "something like 18 grand". Mrs Noble says that Colin referred to the "18 grand" "[a]fter we signed the thing": T, p 395, ln 1. The following exchange then occurred at T, p 395, lns 10-11: Q: Ma'am, weren't you aware when he told you it was going to cost $18,000 that the car was going to cost $18,000? A: After we finished signing the paper. [emphasis added] 737 Dr Spence then asked her again: Q: … when he told you it was going to cost $18,000 you knew – he was telling you it was going to cost $18,000, didn't you? A: Yes. [emphasis added] 738 At this point in the evidence, it seemed to me that Mrs Noble, having regard to her earlier answers, was saying that Colin's remark about the $18,000.00 occurred after she and her husband had signed the documents. Mrs Noble seemed to embrace all of the content of para 28 of her affidavit. Her position was that "there was a lot to sign" and she "didn't get to read anything before she signed it". She said it was correct to say that after she had signed the papers, Colin pointed to a piece of paper (probably the Credit Contract) and said that she would be paying him "something like 18 grand": T, p 395, lns 23-29. Mrs Noble also affirmed that Colin had told her she would have to pay $199.00 a fortnight until 2014. Mrs Noble accepted that each repayment under the contract was $198.56: T, p 397, lns 4-8. Mrs Noble also accepted that the total repayments were recited in the contract as $16,872.22, an amount $1,127.78 less than $18,000.00. Mrs Noble described the amount of $16,872.22 at T, p 397, lns 15-18 as: "That's how much I have left to pay" [emphasis added]. 739 As to the signing of the documents, Mrs Noble accepted that she and her husband signed the contract sometime after 3.00pm or 4.00pm and that before signing, she and her husband spent "some time" with Colin in the office. Mrs Noble did not know how much time she and her husband spent with Colin before signing. Mrs Noble responded to the suggestion that Colin spent between half an hour to an hour explaining the contract, with the answer (T, p 398, lns 15-18): "Don't know". When the suggestion was put that she could not remember, she answered at T, p 398, lns 19-21 in this way: I know we was in the office and he was just talking. He was talking and just keep on sign, just sign the paper, and he was just talking. 740 This exchange then occurred at T, p 398, lns 23-46; T, p 399, lns 1-10: Q: So you had a conversation before you signed the contract, but you can't say how long that conversation was for? A: No. Q: Is that fair? A: No. Q: That's not fair? A: What? Q: You had a conversation with Colin? A: Yes. Q: … for some time in the office before you signed the contract? A: Before? Q: Yes? A: Before I signed the contract? Q: Yes? A: Sitting in the office and …? Q: Yes? A: No. Q: So you're saying this chat before you signed the contract had nothing to do with the contract, are you? A: We only – at that time, we only been in the office when you're signing contracts. Q: When you sign? A: That's when he was in the office. Q: But you've agreed you had a conversation with Colin before you signed it. You don't know how long that conversation was for, right? A: No. Q: And can you tell the court what that conversation was about? A: We just wanted – just wanted to buy a car for three grand. Q: I'm suggesting to you that Colin talked to you before you signed the contract about what was in the contract? A: No. Q: He didn't? A: I don't – no. [emphasis added] 741 Dr Spence put a series of PAMD Act documents to Mrs Noble. She acknowledged her signature and that of her husband on the relevant documents. She said that she had signed the documents "but I don't know what it was": T, p 400, ln 23. She gave evidence that Colin did not "tell her anything about what those documents meant" and that she had "a good memory" of that matter: T, p 400, lns 25-29. However, Mrs Noble when immediately pressed with essentially the same question answered: "Don't know". She was asked again whether she had a good memory about this matter or not and answered again: "Don't know". Mrs Noble seemed to be either tiring or becoming confused as she seemed to be contradicting herself. That caused the Court to explore the issue of the signing of the documents both in the context of the PAMD Act documents and documents more generally, in this exchange commencing at T, p 401, ln 10: HH: Mrs Noble, those documents you've got there [PAMD Act documents], do you remember signing those documents? A: Yes. HH: But you didn't read them? A: No. HH: Do you remember whether anyone told you anything about them? A: No. It's … in there. HH: So you don't remember whether anyone spoke to you about those – told you what was in those documents? A: No. Not this one [one of the PAMD Act documents]. HH: … Do you remember signing them? A: I remember signing papers. Yes. HH: How long did it take you to sign them? Very long? … A: Not that long … [not a] very long … long time. HH: And, before you signed them, did anyone explain what they were? A: No. It was just how much I put in there and how much we would be paying. HH: So …? [Mrs Noble began to add to her answer to the previous question and seemed to begin speaking more generally about the signing of documents and added this.] A: … While we were signing and talking, we was talking about normal life. I mean, like, what we do and … get the car and – just a chat chat. That's all I can remember. HH: Do you remember signing those documents [the PAMD Act documents] at the same time or around about the same time you were signing … A: Yes. HH: The loan agreement and other things? Is that when you signed them? A: Yes. But … I don't recall having this in the papers … another one [Mrs Noble was then referring to one of the PAMD Act documents]. HH: Do you remember who asked you to sign them? A: I don't know if it was Colin or – Colin and Kevin coming in because there was – same men … So when we was signing, another person come in and talking and, sort of, like, it wasn't in an office by itself, like, three person[s] talking and explaining what – that little office was just people up and down talking about you get someone there talking away and get you off track and – and he – Colin said you sign this paper and just talking … – you get your licence and you get your Centrelink payments. If you could just sign it and then you get someone else, you know, talking – talking away. You're never in an office by yourself – with – just with Colin and your husband and just me being quiet and explained it down the line what's going on. HH: … As you were signing these documents, you're sitting there at a desk; is that right? A: Yes. I was on the side – like, me and my husband on the desk … and Colin was telling me how to sign this, like, people walking in and then Kevin coming in and talking and … and we signed it away and they said if you want the car straightaway today, you just – can you just sign the document. … We signed it. We – we, like – will you do it, like – you want the car, like, you – you want a car – you want that car … because you … need it. HH: Well, you wanted the car that day? A: Yes. Yes. HH: Is that right? A: Badly. And we wanted it that day to – just to, like, for the family. HH: Yes. So you wanted the car that day? A: Yes. HH: Yes. You wanted it fairly badly; is that what you're saying? A: Yes. Like, the husband really wanted it and said that's – that look[s] alright and we can, you know, … finally going out and taking the kids, doing this and all whatever. HH: And as these documents were being shown to you … was anyone explaining things to you about the documents; pointing out things? A: No. Not much … no, no, no. No. HH: Well, after you signed them, I think you said Colin pointed to the documents and said … it's 18 grand? A: … like the – when we find that, we look and he [Colin] said this is how much you will be paying and I think, like, this is going to be 18 grand … the document … I thought it was 18 … HH: Yes. A: … and – and I'm just – read it after that – after but just the front part with a – didn't know the loan situation and didn't know anything other than this here and myself. We just signed – just signing. HH: Okay. So in the front part of that document [the Credit Contract] Colin pointed out to you that it would be $199 a fortnight? A: Yes ... HH: … And he pointed out to you that the total amount was around 18 grand? A: Yes ... HH: … Were there other things that were pointed out to you? A: If there's – if there's – if we miss a payment, there would probably be a late fee … a fee. HH: That was pointed out to you? A: Yes. HH: Was anything else pointed out to you? A: No. … Only just the [cooling] off the – we can't – for warranty. HH: Did anyone mention the word – or the concept – but the word "interest"? A: No. HH: And you can't remember any mention of that? A: No. No. HH: All right. And do you remember anyone talking about a fee, a brokerage fee or a commission or anything like that? A: No. It was nothing. HH: Yes. And before you signed the documents, when you went into the office area to sign the documents, was anything explained to you about the documents? What they were, what you were signing? A: No. HH: All right. What did you think you were signing? A: Signing – just – I don't know. HH: You thought you were borrowing some money to buy the car? A: No. I thought I was just time paying it. HH: Just a time payment? A: Like I used to do at Bungalow, really. Like, I time paid a Bungalow car 3000 and it was just 3000 just straight up, you know. But I think he meant – when he said, you can take the car, you can get the car, take it now, I'm just thinking, well, [j]ust going to time that money off, 10 grand, and – what's the thing. [Some aspects of the grammar reflected in the transcript are corrected here]. HH: … And you were saying that the people were coming and going and there was some general conversation going on. But do you have any recollection of a discussion there [in the office] for any length of time, like a half an hour or more where these documents were explained to you by anybody? A: No. HH: Did Colin look at them and point them out to you and say, "you need to know about this" or "have a think about this" or "look at this"? A: No. [emphasis added] 742 Mrs Noble gave evidence that after the paperwork had been signed that morning on 2 March 2011, Elsa Dabah asked Colin whether they could take the car that day. Mrs Noble says that Colin handed the keys to the Pajero to her and while she and Colin were talking outside, Colin said: "There will be no cooling off warranty if you take it today". Mrs Noble said: "Okay". She gave evidence that she knew what a "cooling off warranty" meant as another car dealer had explained it to her at some earlier time: T, p 371, lns 35-46; T, p 372, lns 1-5. Mrs Noble asked this question of Colin: "… if it breaks down, do we have to bring it back?" Colin said: "Yes and it will cost". 743 This issue of "no cooling off warranty", to use the phrase of Mrs Noble, was tested by Dr Spence in cross-examination. It was the source of some confusion. Mr Noble signed a document (Ex 22) which provides for an extended warranty of 12 months, according to the terms of the document. Mrs Noble gave evidence that she did not know that her husband had secured an extended warranty and the first time she saw the document signed by him was in cross-examination: T, p 410, lns 10-11. She said that the first she knew of it was when she went to a solicitor and saw ICAN, after she had bought the car. Mrs Noble gave evidence that the agreement with Colin was "just a one day cooling off warranty" (T, p 410, lns 11_12) and "there was no warranty, just a cooling off day" (T, p 410, lns 16-17). Dr Spence suggested to Mrs Noble that the concept of a "warranty" was different to the notion of a "cooling off period". Mrs Noble said she did not know about that: T, p 410, lns 18-20. Dr Spence asked her whether she thought that because she thought there was no cooling off period, she could not take the car back to Supercheap to have it repaired under warranty. Mrs Noble said: "No. I don't know": T, p 410, lns 22-27. Mrs Noble was asked about her understanding of a "cooling off period" and said: "cooling off – cooling off warranty is just that you take it back – [and] we won't fix it for free": T, p 410, lns 29-30. She also said that her understanding was this (T, p 410, lns 32-33): So I thought I had no warranty on it. Once you take it out of the yard, it's yours. 744 That seemed to follow for her because when walking "outside with the key" having "signed all the paper" there "was another story" with Colin saying that (T, p 410, lns 45-47): … there was a cooling – a cooling off period. There is no warranty. Once you take the car, it – there – there will be no warranty. 745 Mrs Noble also gave evidence that Mr Noble did not know about the extended warranty for the reason that "he doesn't know how to read" and "he has a problem reading": T, p 411, lns 8-13. As to whether Mr Noble might have been told about the extended warranty by Mr Hulbert, but simply failed to mention it to her, Mrs Noble simply asserted that Mr Noble did not know of the extended warranty. Mrs Noble was pressed about this issue in this way with the following answer at T, p 412, lns 10-14: Q: I want to suggest to you that in fact you did know about the warranty but you chose not to take the car back later on when it had mechanical problems. A: I did not know about the warranty. We had a conversation outside, and there was no cooling off warranty. That's what he said, no cooling off warranty. There's no warranty. This is – once you take the car out today, there's no cooling off warranty. 746 Dr Spence continued to challenge that version of the events. Dr Spence asked Mrs Noble a sequence of questions about her Centrelink payments and then immediately returned to the topic of the "cooling off warranty". Dr Spence put to Mrs Noble that she might be confused about the notions of "cooling off" and "warranty", "because Mr Hulbert said to you if you want [the car] the same day, there will be no cooling off or warranty" (T, p 413, lns 18-21) which embraced, as Mr Hulbert's version, the formulation in Mrs Noble's affidavit at para 30. However, Dr Spence asked Mrs Noble, as to that statement of Mr Hulbert recited at her para 30: "… did you understand he was talking about the one concept of a cooling off warranty" (T, p 414, lns 30-31). Mrs Noble reaffirmed that Mr Hulbert had said to her: "If you want the car the same day there will be no cooling off or no warranty" [emphasis added] (T, p 414, lns 33-38). When asked whether she thought that "cooling off" was the same thing as a "warranty" she said: "Yes" (T, p 414, ln 40). 747 In terms of the period over which these events occurred, Mrs Noble accepted that she, Mr Noble and Ms Dabah were at the car yard from about 9.00am until about 4.00pm or 5.00pm on 2 March 2011: T, p 376, lns 35-36. 748 Mrs Noble says that when she and Mr Noble bought the car, they were living from fortnight to fortnight. They were not saving any money or putting any money away for a car. They did not have any extra money. Mrs Noble had a loan from the Commonwealth Bank and was paying approximately $54.00 a fortnight in repayments. The loan was paid off in about March 2011. At the time of buying the car on 2 March 2011, Mrs Noble says that she relied upon regular fortnightly payments from Centrelink for her income. She says that she had some regular deductions for rent and a Centrelink advance and school fees. She says that after these deductions she received an amount of about $900.00 a fortnight. She says that Mr Noble received a Newstart Allowance each fortnight of $450.00 from which electricity expenses were deducted with the result that he received about $250.00 each fortnight into his bank account. 749 The expenses that Mr and Mrs Noble were incurring at the time are described, at para 50 of Mrs Noble's affidavit, in this way: We pay Yarrabah Community Housing $350 a fortnight. This is deducted from our Centrelink; The electricity was about $100 a fortnight and we use Centrepay to pay that; We spend about $300 a fortnight on groceries; I pay about $100 a fortnight for the kids school fees through Centrepay; I pay about $70 a fortnight for funeral benefit insurance through Centrepay; I spend about $200 a month on clothing for the family. 750 These expenses amount to $2,040.00 per month. 751 As to the car, Mrs Noble says that a couple of months after they took the car, the fan belt broke and they had to replace it. It cost them $50.00. They then noticed that the back left tyre was smaller than the other one and they then had to buy a new tyre as the old one was bald. When they took the car to the repair shop, they had to replace another tyre as well which cost them $230.00. The radiator was also leaking and they needed to have that fixed, although they had to obtain the money first. Three of the four power windows did not work. Only the front driver side window worked. The car also had a lot of rust inside. It needed a new battery which cost $99.00. They do not have the car anymore. It was towed away. 752 In her oral evidence, Mrs Noble says that about a month after she bought the car, the fan belt made a loud screeching noise. It had to be replaced. One of the windows would not operate. There was rust in the vehicle. As mentioned earlier, one of the tyres was smaller than the others. The police warned about the state of the tyres. New tyres had to be purchased. The car had radiator and oil problems. About a month after buying the car, it had great difficulty in "climbing the range". It reached the top of the hill "all smoking up". Mrs Noble says that on that day they decided to turn back and went home to Yarrabah "scared [that] it would have blown up". The car, thereafter, was essentially "left at home": T, p 372, lns 38-47, T, p 373, lns 1-14. 753 As to the loan, Mrs Noble says that she began paying off the loan satisfactorily. After a few months, however, she "ran out of money and started missing payments". She says that when she missed a payment she went to the car yard and gave Colin $200 cash to make up for it. At para 58 of her affidavit she says this: Just before Christmas a man and a woman came out to my place, the man had black hair and the woman had blonde hair. They said I was behind $500 in my payments and they were going to take the car away. They asked me to sign something but I said I wouldn't sign anything. They said if I didn't sign it they would take me to court and I said fine I could tell the judge what a shit car they gave me. I told them I would pay it when I could afford it. Then they said I had to pay another $350 because they had to drive out from Cairns. 754 Mrs Noble says that she has received a few letters in the mail advising her that she has missed payments. She says that she has never received a statement showing how much she has paid Colin and how much she still owes on the loan. She says this at para 61 of her affidavit: I feel like I've been ripped off. Colin told me the car was going to be 10 grand, then after we signed the documents it went up to 18 grand. Colin told me I didn't have a warranty on the car but I paid $1,000 for a warranty. I don't know what a brokerage fee is and I paid $550 for that. I didn't want to borrow any money for those things. I just thought the car would be 10 grand and I would pay that off for $200 a fortnight until 2014. 755 The CBPL file contains the standard letter from Mr Humphreys to Channic which is dated 2 March 2011. It seeks a loan for $7,990.00 and recites a request for a repayment of approximately $100.00 per week. It contains copies of the two Credit Application Forms, the signed AHA Finance privacy policy document, identification documents and the two Centrelink statements of 2 March 2011. It contains a Preliminary Assessment in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 2/03/2011 Client Name: William Damien Noble & Joan Cecily Noble Broker: Cash Brokers Pty Ltd Loan Purpose: Motor vehicle purchase $10,990 Cash Deposit $3,000 Capacity: Borrower Income PAYG $918.66 Borrower Income $2,954.31 Maintenance $0.00 total monthly income $3,872.97 Expenses Rent/board monthly $476.66 Living expenses $2,925.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $0.00 Other Finance $54.80 Contract Payments $0.00 Mobile Phone Prepaid Repayment this loan $400.00 total expenses $3,856.46 Surplus/Deficit $16.51 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 756 The final two documents on the CBPL file are a copy of Mr Hulbert's letter advising of Channic's assessment that the Credit Contract is not unsuitable for Mr and Mrs Noble and a copy of CBPL's invoice for brokerage fees of $550.00 addressed to Mr and Mrs Noble. 757 The Channic loan file contains a copy of the loan application letter submitted by CBPL, copies of the two credit application forms, a copy of the signed AHA Finance document, copies of identification, copies of the two Centrelink statements and a copy of CBPL's Preliminary Test. It also contains a Veda credit check report dated 2 March 2011 concerning Mrs Noble and a Veda report of the same date concerning Mr Noble. 758 The Channic Credit Suitability Assessment was made on 2 March 2011. It recites available income per month of $3,872.97. It recites that the customer is seeking credit in an amount of $8,561.50 over a loan term of 85 fortnights at 48% interest per annum. The document is signed by Mr Hulbert. The file contains a copy of a Loan Inquiry Checklist dated 2 March 2011 signed by Mr Hulbert and a Verification Checklist of the same date signed by Mr Hulbert. It contains a copy of Mr Hulbert's letter of 2 March 2011 to CBPL advising that the Credit Contract has been assessed as not being unsuitable for the clients. It invites CBPL to submit an invoice for brokerage fees and a copy of any contract between Supercheap and the customers for the purchase of the vehicle which is to be used as security for the loan. The Channic file contains a copy of the Credit Contract as earlier described, the Supercheap sales invoice and the brokerage fee invoice. It also contains a copy of the initialled credit guide as earlier described and a copy of the "Acknowledgement" document as already described. It also contains a copy of the "Loan Ledger for Loan 5140". 759 There is no bank statement on the Channic loan file. 760 Mrs Noble says that Colin did not press her for a bank statement although she says that he did ask her for her "account number". Colin asked for it and Mrs Noble says she gave it. Mrs Noble put it this way: "I didn't get my bank statement so I just gave him my account number since we already signed – like we signed the deal": T, p 389, lns 26-28; T, p 390, lns 1-6. 761 Folder 9 of the ASIC trial bundle contains other documents in relation to Mr and Mrs Noble. In particular, there is a copy of a bank statement in respect of Mrs Noble's Commonwealth Bank "Streamline Account" reflecting transactions for the period 29 September 2010 to 1 December 2010. For the month of October 2010, as an example, Mrs Noble received as credits to the account the following payments from Centrelink: Date in 2010 Transaction Amount 5 Oct Centrelink Parent $131.60 12 Oct Aus Gov Families $60.06 12 Oct Aus Gov Families $852.84 19 Oct Centrelink Parent $132.50 26 Oct Aus Gov Families $58.64 26 Oct Aus Gov Families $851.91 762 Those payments for the month of October amount to $2,087.55. For the month of November, those classes of payments amounted to $2,216.56. The three fortnightly payments are approximately $1,045.00. 763 As to the bank statement, it shows a Centrelink receipt on 5 October 2010 of $131.60 resulting in a credit balance of $133.49 and a sequence of expenditures on 5 and 6 October 2010 amounting to $193.27 (leaving aside bank fees), resulting in the account being overdrawn by $63.98. Another Centrelink receipt occurred on 12 October 2010 of $852.84 resulting in a credit balance of $801.72. On 12 October 2010, a sequence of expenditures occurred (seven payments including cash withdrawals to pay for groceries and food) amounting to $834.80 resulting in the account being overdrawn by $51.08. On 26 October 2010, a Centrelink payment of $851.91 occurred resulting in a credit balance of $913.27. On 26 and 27 October 2010, 11 transactions occurred (leaving aside bank charges) amounting to $691.23 leaving a credit balance of $0.04. In other words, there is a pattern of money in and immediate expenditure out, of the entire benefit payment. Mrs Noble seemed to be surviving from benefit payment to benefit payment, having regard to the bank statement. 764 As to the car, in the course of her oral evidence, Mrs Noble said that when she bought the Pajero, she did not take it for a test drive. She looked at it by walking around it. The doors were locked. She says she was not able to get inside the vehicle until the transaction was complete. 765 In cross-examination by Dr Spence, Mrs Noble was taken to the Credit Contract. Mrs Noble expressed surprise, when it was put to her, that Damien had been made a party to the loan contract. She said that "Colin didn't say that to Damien": T, p 381, lns 38-40. Mrs Noble acknowledged that the contract recites each of William Damien Noble and her as a borrower/mortgagor each responsible for the repayments. However, Mrs Noble expressed surprise at learning about that matter. She said that and her husband had not talked about their respective liability for the repayments nor the circumstance that those repayments amounted to $16,872.22. She accepted that her husband had signed and initialled the contract. Dr Spence suggested to Mrs Noble that, in truth, she did know that Mr Noble was jointly responsible under the contract as it had been signed in her presence. Mrs Noble said that Colin was only talking to her about paying the money and was only making arrangements for the money to be taken out of her account. Mrs Noble put it this way at T, p 383, lns 17-23: Q: Sorry, can you say that again? A: Colin was just – only just talking to me that I have to pay – the money has to come out of my account. Q: Okay. A: So – My – my key card and he didn't say – he didn't say to Damien dude give me your thing – account number – so – like, Damien was going to take money out, or he didn't say anything to him like that. All he said was to me. That's all. He didn't mention it to Damien. [emphasis added] 766 Mrs Noble was pressed further about this issue (T, p 383, lns 36-46) in this way: Q: You were there and you saw him sign and initial a contract, weren't you? A: Yes. Q: Well, didn't you know that he had entered the contract, then? A: He don't know. He don't know. Q: I'm asking about you ma'am. I'm asking about …? A: I don't know. Q: You didn't know that he had signed? A: I didn't know. Q: You didn't know that he had initialled and signed …? A: We didn't know. We didn't know about this. [emphasis added] 767 There may have been some confusion in the mind of Mrs Noble about whether a difference exists between having seen Mr Noble sign and initial the document and whether, by doing so, Mr Noble had entered into the contract in the sense of being bound by the contract. In fact, counsel for ASIC objected to the questions put to Mrs Noble, as being unfair in the way they were framed, as Mrs Noble may have been asked to express a view about whether Mr Noble was bound by the contract. Dr Spence sought to clarify that matter in this way at T, p 384, lns 34-37; lns 45-47; T, p 385, lns 1-2: Q: So I suggest to you, ma'am, you're wrong about that. You did know that he had entered the contract along with you? Alright. I'm saying to you that you've got it wrong. That you did know that your husband had entered the contract as well as you? Do you not understand me? A: No. I don't understand you … Q: Ma'am you agree you saw your husband sign and initial the contract? A: Yes. Q: But, despite that, you thought that you were only agreeing to what was on the contract? A: Yes. PART 12: THE EVIDENCE OF MS CHARLOTTE MUDU 768 Ms Charlotte Mudu affirmed an affidavit in the proceedings on 17 June 2014. In that affidavit, she refers to the following matters. I will also have regard to her oral evidence. 769 Ms Mudu was born on 13 November 1967. She was 42 years of age when she engaged with Supercheap, Mr Humphreys and Mr Hulbert. 770 Ms Mudu attended High School in Yarrabah up to Year 10. She has eight children. Three children were living at home with her at the date she affirmed her affidavit. They were Thomas, Radina and Isaac. Another child, William, who was 21 at the date Ms Mudu affirmed her affidavit, also lived with Ms Mudu although he had relatively recently moved out of home. Thomas, aged 27, has a mental disability. He has dementia and schizophrenia. Ms Mudu is a carer for Thomas. Ms Mudu has been living at Yarrabah in the Aboriginal Community for all of her life. She has lived with her partner, Aaron Elliott, for 28 years. Between October 2011 and February 2012, Aaron was in jail. 771 Ms Mudu says that she is unemployed and she receives Centrelink payments. She used to work with the "Community Development Employment Projects" program which is much like the "work-for-the-dole" program. She stopped doing that in 2007. She says that her English is "alright here in Yarrabah" and "ok outside but not too many big words". She says that she can read "okay" but she needs glasses to read. She says she can read but she cannot "really understand all the words". She says that it might be "hard to read a big long paper". She says that she speaks "a bit of Island language, which is from the Torres Strait". 772 In September 2010, Ms Mudu's brother-in-law, Errol Gordon, told her that they would go up to Cairns to "get you fixed up for a car". Ms Mudu did not really need a car but she thought "it would be good to have one to get around". She said that she did not have any money to buy a car. She and Errol Gordon went to Supercheap on Mulgrave Road. She says that Errol "talked to a tall skinny man and introduced him to me". His name was "Kevin". Kevin introduced her to another man and his name was "Colin". I will continue to use those names. 773 Ms Mudu says that Kevin asked her if she was looking for a car and she said: "Yeah". She responded that way because Errol Gordon had told her that they were going to Cairns "to get a car for me". Ms Mudu had a conversation with Kevin. He asked her what she was looking for and she said: "I'm looking for a decent car, like a Commodore". Kevin said: "This is a decent car" and pointed out a white car which Ms Mudu recognised as an old Holden. It was a model called an "Apollo". It was manufactured in June 1994. She says that she did not want that car because her "cousin-brother" Raymond Harris, who lives in Yarrabah, "already had that same car". Ms Mudu says that Kevin was trying to talk her into taking the Apollo: T, p 444, ln 36. Ms Mudu, at para 17 of her affidavit, adds this: I was thinking is this fella for real or what. I didn't want that same car but that's what they gave me. 774 Kevin asked her if she had any money with her. She told him: "No". There was no price written on the car: T, p 444, lns 44-46; T, p 445, ln 1; lns 8-9. Ms Mudu does not remember talking about a price "for the car or anything". Ms Mudu says this at para 20 of her affidavit: Kevin told me, me and my old man, Aaron, would have to come in for an appointment and sign some paperwork next week before we could buy the car. We left that day and I didn't buy nothing that day. 775 In her oral evidence, Ms Mudu says that these conversations were with Colin: T, p 422, lns 36 and following. 776 Ms Mudu says that on 30 September 2010, she went with Aaron Elliott to Supercheap and met with Kevin. In her oral evidence, she says she spoke with Kevin and Colin: T, p 424, lns 15-19. She says that he asked them to fill out some paperwork. She describes it this way at para 21: "I didn't know what we were filling out. We had to put our names and the names of some of our relatives and friends". 777 Ms Mudu refers to a Credit Application Form dated 30 September 2010 and says that this is the "paper work I filled out with Kevin". She says that her signature is on the last page (p 3). She filled out her personal details and put the names of her family and friends on the form in the "References" box on p 2. As to the Financial Information, Ms Mudu says that she did not fill in the "Gross Income" on p 1 of the form or the information in the "Financial Information" box on p 2: T, p 426, lns 8-9. As to p 1, the form recites that Ms Mudu's current employer is Centrelink and that her income is $1,911.30. Ms Mudu does not recall writing that number on p 1: T, p 426, lns 1-2. As to the Financial Information box, only two of the 10 expenses items are completed and they are these: "Food: [possibly 'Rent'] P/F/N $150 per week"; "Child Support: P/M Paid $12.00 per week". The letters P/F/N seem to be per fortnight. As to the "Supporting Documents", five of the listed documents are ticked as being "applicable" and they are: a copy of the driver's licence, a copy of a bank statement, a copy of a Centrelink income statement, proof of current residential address and "100 points identification". The document also ticks a box suggesting that Ms Mudu would like a trained insurance professional to provide her with a competitive quote. The document is signed by Ms Mudu. It bears the date 30 September 2010. 778 There is a second Credit Application Form. Ms Mudu refers to a Credit Application Form dated 30 September 2010 which "Aaron filled out with Kevin". Ms Mudu says that Aaron Elliott signed the document but the handwriting entries concerning his "Income" and "Financial Information" is not his handwriting. Ms Mudu filled out the names on the form in the "References" box on p 2. As to p 1, the form recites that Mr Elliott's current employer is Centrelink and that his income is $2,187.42. Ms Mudu thinks that that amount is in Aaron's handwriting although she is not sure: T, p 215, lns 20-25. As to the Financial Information box, only two of the 10 expenses items are completed and they are these: "Food: [possibly Rent] P/F/N $150 per week"; "Child Support: P/M Received $40 per week". The letters P/F/N and P/M seem to be per fortnight and per month. None of the "Supporting Documents" are ticked as being available. The document is signed by Aaron Elliott. It bears the date 30 September 2010. 779 Ms Mudu says that Kevin asked each of them what Centrelink payments they were receiving. Ms Mudu had to go across the road and get a copy of a Centrelink statement for each of them and a bank statement from the Commonwealth Bank which was also across the road. Ms Mudu gave the Centrelink statements and her bank statement to Kevin. In her oral evidence, Ms Mudu says that Colin asked her to obtain a bank statement. She also says that having gone across the road to obtain the Centrelink statement and a bank statement she returned and gave the documents to Colin and Kevin: T, p 429, lns 1-23. In cross-examination, Dr Spence asked Ms Mudu about these events and whether these things happened that way. Ms Mudu says: "Yes. Colin took me over to the bank [and] he walked over with me". Ms Mudu says that when they returned to the dealership she gave the bank statement to Kevin. She signed the documents after having obtained the Centrelink statements and the bank statement: T, p 446, lns 3-28. 780 The Centrelink statement for Ms Mudu is dated 30 September 2010. It says that she is a non-partnered customer. She is entitled to the maximum rate Family Tax Benefit and the maximum rate Parenting Payment Single. It says that the number of assessed children is one child at 100%. 781 The Centrelink statement says that Ms Mudu was previously receiving regular entitlements and payments as follows: Previous regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $588.03 30 Sep 2010 Pharmaceutical Allowance $6.00 30 Sep 2010 Pension Basic Supplement $20.09 30 Sep 2010 Family Tax Benefit Part A ($160.30)* $160.30 23 Sep 2010 Family Tax Benefit Part B ($95.06)* $95.06 23 Sep 2010 Rent Assistance ($12.66) $12.66 23 Sep 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 782 The Centrelink statement contains the following information concerning Ms Mudu's future regular entitlements and payments: Future regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $591.70 14 Oct 2010 Pharmaceutical Allowance $6.00 14 Oct 2010 Pension Basic Supplement $20.20 14 Oct 2010 Family Tax Benefit Part A ($160.30)* $160.30 7 Oct 2010 Family Tax Benefit Part B ($95.06)* $95.06 7 Oct 2010 Rent Assistance ($11.34) $11.34 7 Oct 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 783 The Centrelink statement contains information concerning deductions from payments to which Ms Mudu is entitled. The deductions set out in the statement are these: Deductions from your payment Payment Type Deduction Amount Date Paid Parenting Payment Single Child Support Deduction $20.85 30 Sep 2010 Parenting Payment Single Centrepay Deductions $50.00 30 Sep 2010 Parenting Payment Single Lump Sum Advance Repayment $38.00 30 Sep 2010 784 The Centrelink statement for Aaron Elliott is dated 30 September 2010. It says that he is a non-partnered customer. He is entitled to the maximum rate Newstart Allowance. 785 The Centrelink statement says that Aaron Elliott was previously receiving regular entitlements and payments as follows: Previous regular entitlements and payments Payment Type Amount Date Paid Newstart Allowance $453.91 17 Sep 2010 GST Component $8.89 17 Sep 2010 Rent Assistance $36.90 17 Sep 2010 786 The Centrelink statement contains the following information concerning Aaron Elliott future regular entitlements and payments: Future regular entitlements and payments Payment Type Amount Date Paid Newstart Allowance $459.23 1 Oct 2010 GST Component $8.99 1 Oct 2010 Rent Assistance $35.96 1 Oct 2010 Newstart Allowance $460.68 15 Oct 2010 GST Component $9.02 15 Oct 2010 Rent Assistance $35.70 15 Oct 2010 787 The Centrelink statement contains information concerning deductions from payments to which Aaron Elliott is entitled. The deductions set out in the statement are these: Deductions from your payment Payment Type Deduction Amount Date Paid Newstart Allowance Child Support Deduction $13.80 17 Sep 2010 Newstart Allowance Lump Sum Advance Repayment $38.50 17 Sep 2010 788 Ms Mudu says that Kevin had a look at the two Centrelink statements. She thinks that he "filled out some more paperwork". She says that she gave Kevin some bank statements for her Commonwealth Bank account. She says that after that, Kevin told her that she and Mr Elliott would have to make four or five payments as a deposit before they would be allowed to take the car. She describes Kevin's remarks this way at para 30 of her affidavit: The payments will be $250 a fortnight. You can't take the car until you have made the payments. The deposit will be $1,500. 789 Ms Mudu says that at the time she was thinking that "that was too much". She says she whispered to Aaron that she thought "it was a bit much before we got the car". She does not know if they made those payments. She says that "[m]aybe Aaron did": para 31. Ms Mudu says that they were both going to pay off the car: T, p 447, ln 13. 790 The CBPL Preliminary Test in respect of Ms Mudu and Mr Elliott is in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 30/09/2010 Client Name: Mudu Charlotte & Elliott Aaron Broker: Kevin Humphreys Loan Purpose: Motor Vehicle Purchase $7,990 Cash Deposit $1,050 Capacity: Borrower 1 NET monthly income $1,911.30 Borrower 2 NET monthly income $1,082.68 Child Received by Charlotte $48.00 Maintenance Borrower 1 $0.00 total monthly income $3,041.98 Expenses Mortgage monthly $325.00 Rent/board monthly $325.00 Living expenses $1,625.00 Single $950; Married/De facto $1,300; Each child $325 Mobile Phone $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $55.51 Child Support Paid By Aaron $48.00 Repayment this loan $433.33 total expenses $2,811.84 Surplus/Deficit $230.14 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 791 As to the Preliminary Test, Ms Mudu says that she has not seen this document before and no-one took her through it or asked her if the information contained in it was accurate. 792 Ms Mudu says that Kevin told them to come back to the car yard after a couple of weeks. Ms Mudu says that Kevin did not give her anything and neither of them received any paperwork at that time. She says that a few weeks later she went back to Supercheap and saw Kevin. She says Kevin told her that she could not sign anything because Aaron was not there. Kevin asked her to return next week with her partner. 793 On 14 December 2010, she went back to Supercheap with Aaron. On this occasion, they met with Colin. He showed them some paperwork that, she says, "they had to sign" in order to "get the car": para 35; T, p 448, lns 39-47. She says that they did not sit with Colin for very long. She says that there were a lot of papers on the table in front of them to sign: T, p 449, lns 6-12. He "just handed us some papers and pointed to where we had to put our initials and where we had to sign". Ms Mudu says that the document she was asked to sign by Colin is the Credit Contract described as Consumer Loan Contract and Mortgage No: 5115. 794 That contract contains the following information: FINANCIAL TABLE Amount of credit of the loan $7,951.50 Annual percentage rate 48% per annum Total amount of interest payable $3,967.42 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 48 consisting of 47 repayments each of $248.35 Plus a Final Repayment of $246.47 Total amount of repayments $11,918.92 Date of first repayment 23/12/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 14/12/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 795 The Comparison Rate entry is in these terms: Comparison Rate 47.0637% per annum This rate is calculated on the $7,951.50 credit amount over a 95 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 796 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 14/12/2010 Loan Draw Down Date 14/12/2010 Loan term commencing from the Draw Down Date 95 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $6,940.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates [This box sets out 48 payments, the date of the payment and the amount of each payment.] Interest is calculated in accordance with Clause 5 of the General Conditions. … 797 As to this document, the initials of each borrower appear at the foot of each page. The document is signed by Mr Hulbert on p 4 and bears the date 14/12/10. The document is signed by Ms Mudu and Mr Elliott. Their signatures are witnessed by Mr Hulbert. The signature page bears the date 14/12/10. On p 7, Box A is crossed out. Box B by which the borrower's choose not to obtain legal advice is signed by Ms Mudu and Mr Elliott and dated 14th December 2010. The direct debit request being the PayGate form is signed by Ms Mudu and dated 14/12/10. 798 As to the signing of the document, Ms Mudu says that "Colin didn't say very much": para 38. She also says: "I do remember him telling us that we would have to pay him $250 a fortnight": para 38. She also says that he then "mumbled something" and it sounded like: "Then I'll take the payments down to $100 or something like that": para 38. She says that Colin then gave them the keys to the car. She says that when they went to take the car it did not have any petrol in it. Colin gave them $20.00. 799 Ms Mudu says that she does not know what documents she and Mr Elliott signed with Colin. She says that she did not read those papers. She says that she does not think that she could read those papers as they were "too long" and she "can't understand the words anyway". She says that she has been shown the Credit Contract and she has been told that it says the annual interest rate is 48% per annum. She says she does not know what that means. She thinks that "48 is like 50, which is like half". She adds: "I don't know what 48% per annum means": para 41. She also says that she has been told that the contract records total interest payable of $3,967.42. She then says this at para 42: I know interest is like an extra you pay somebody. I didn't know I was paying anyone 'extra' for anything. I thought we just had to pay $250 a fortnight for the car. 800 Ms Mudu says that she has also been told that the contract records total repayments of $11,918.92. As to that, she says at para 43: I don't have that kind of money. That's a lot of money. I didn't know I had to pay anyone $11,000. 801 Ms Mudu says that she has been told that p 2 of the contract records a brokerage fee of $990.00 payable to Cash Brokers Pty Ltd. As to that, she says at para 44: I've never heard of Cash Brokers before. I didn't want to pay anyone $990 for anything. I didn't know I was borrowing $990. I don't even know what a brokerage is. 802 Issues in relation to the Credit Contract were canvassed with Ms Mudu in oral evidence. She says she went to the dealership on more than two occasions. On the second occasion, she signed a number of forms. She did so in the office at Supercheap. Ms Mudu was asked these questions and gave the corresponding answers to counsel for ASIC at T, p 432, ln 29 and following; T, pp 433 and 434: Q: Can you tell his Honour about how it came to be that you signed this document [the Credit Contract]? A: Yes. Well, we were just – well – well, I just get them mixed up – Kevin, I think. Kevin just said sign – just put your signature at the bottom and that sort of thing. Q: So you demonstrate that you were just flipping the corner? A: Yes, like – like … just lift it over and we just … Q: And while you were signing those documents, was there any conversation going on? A: No. Q: Okay. Did anyone explain anything to you about these documents? A: No. Q: … were you told how much [the car] was going to be, the cost of the car? A: No. Q: Okay. Did you understand when you were signing this document that you were going to be borrowing money for the car? A: No. Q: Do you know about interest rates? A: I have no idea. I don't know ... Q: … how much deposit did you pay? Do you recall? A: $240, I think. $248 or $250. Something like that ... Q: That may be the repayments. … Do you remember paying a deposit on your car when you went there? You don't recall? A: No ... Q: Did you pay the deposit in instalments? Did you pay $248 in instalments? A: Yes, from … Q: Until you got the deposit – paid it? A: Yes ... Q: … And did anyone tell you that for – in relation to loaning money, you were going to pay back about $12,000? A: No. Q: And did anyone speak to you about brokerage … or something like that? A: I don't know anything about that. Q: But did anyone tell you about it? A: No. Q: Did anyone mention $990 extra that you would have to pay for something? A: No. Q: … did anyone talk to you about extra fees for borrowing money? A: No, I don't recall. Q: And did anyone talk to you about getting legal advice or whether you should get legal advice? A: No. Q: Did anyone say that you could choose not to get legal advice? A: I didn't – no, I don't – I do not remember. Q: … Did you write or draw the line across [Box A on p 7 of 20 of the Credit Contract (p 24 of Ms Mudu's affidavit)]? A: No. I don't remember. Q: When you say you don't remember, do you think you didn't or …? A: I didn't. I didn't. Q: … Did you sign any other documents? Do you recall? A: I cannot remember ... Q: You can't remember? A: Yes. Q: Might you have signed some other documents? You don't recall? A: No, I don't recall. Q: Well – I will ask you this general question. When you were there signing, did anyone explain any of the document that you were signing? A: No. Q: And did you read any of them? A: No. Q: … Okay. Now, you – when you got this car, you realised you have to make some repayments on the car? Did you realise that at the time? When you bought the car? A: Yes. Q: Did you realise that you will be paying some money back over time to …? A: Yes … Pay money back, yes. Q: And how much over time did you think you would pay? A: Till it's paid off, buddy. Q: And do you recall the purchase price? It's okay if you don't? A: I don't know. 803 Dr Spence also took Ms Mudu to these events resulting in the following exchange at T, p 450, between lns 4-33; T, p 452, between lns 13-39: Q: … so do I take it from that [an earlier answer], Colin didn't force you to sign it; did he? A: No. Q: Do you think Colin bullied you into signing it? A: No. Q: … I would suggest to you Colin said: "Hey you better read this document [the Credit Contract]"? A: No. Q: I suggest to you that Colin went through the document and explained [it] to you in detail? A: … Only, the old ones wouldn't understand, like me and Aaron. I have to look at Aaron too and say, look, you – you've got more sense than me. I don't know. Q: … I'm suggesting to you he [Colin] had quite a lengthy conversation with you before you signed the document; do you remember that? A: What do you mean, the mumbling. He was mumbling. … Q: What I'm saying to you is that he talked about the contract before he told you where to put your initials and sign. I'm suggesting … he talked about the contents of the contract before you signed it? A: Talked about the contract? Q: Do you understand me? A: … I'm just trying to recall – like, trying to remember … … He brought the paperwork out. Q: Yes. A: And he was explaining it, like, "blah blah blah", you know what I mean? Q: "Blah blah blah?" A: I couldn't understand him. … I couldn't understand him. He was explaining the thing, but I couldn't understand him – what he was going on about. You know what I mean? … It was, like, too quick talk. ... They got a different language, you know. They talk pidgin and they talk – whatever. It was – he was, like, "blah blah blah". [emphasis added] 804 As to the reference to Mr Hulbert just mumbling, Ms Mudu also described Mr Hulbert as a person who "just wasn't there". By that phrase she meant: "Just when he was mumbling", he was not there because "It didn't sound, like, plain to me": T, p 474, lns 8-24. 805 Ms Mudu denied the proposition put to her by Dr Spence a number of times that Mr Hulbert told her she could go and see a lawyer about the Credit Contract if she wanted to: T, p 455, lns 36-45; T, p 456, lns 1-7. She also denied again the proposition put to her by Dr Spence that Mr Hulbert told her that the total repayments would be $11,918.82: T, p 458, lns 1-7. Ms Mudu gave evidence that she did not understand the notion put to her by Dr Spence that she would be buying the car on credit: T, p 458, lns 21-22. On the question of whether Ms Mudu had any sense of the possible cost of paying something off over time, Ms Mudu accepted that she was going to use her Centrelink payments to pay for the car and that she would have to pay off, over time, "the money she owed on the car". She accepted that she would go "into debt" and that "they [would] take more … to pay the car off": T, p 459, lns 35-46. Ms Mudu also accepted that she had had a Mastercard credit card since 2002 or 2003. She gave evidence that she "just looks at the statement" when it arrives and "we just put them aside": T, p 462, lns 23-25. 806 As to her financial circumstances, Ms Mudu says that when she was taking steps to purchase the car, she did not have very much money. She was waiting for her Centrelink payment every fortnight and she did not have any spare money. Her bank account was in debit at the end of every fortnight. She attaches two bank statements to her affidavit for accounts at the Commonwealth Bank. The first is a Streamline account for the period 1 June 2010 to 9 September 2010 and the second is a Complete Access account for the period 10 September 2010 to 1 December 2010. She says that at the time of purchase of the car, she was receiving a Single Parent Allowance and a Family Tax Benefit. She refers to the deductions taken out by Centrepay for maintenance and the repayment of some Centrelink loans. She says that she has reviewed her bank account statement and she believes that she was receiving a Single Parent Allowance of approximately $460.00 and a Family Tax Benefit payment of approximately $265.00. She says that at the time of purchase of the car, Mr Elliott was receiving a Newstart Allowance from Centrelink. Deductions were also made by Centrelink in respect of Centrelink loans and child support. Ms Mudu thinks that Mr Elliott was receiving approximately $450.00 per fortnight before the deductions were taken out. 807 Apart from these payments, Ms Mudu says that her son, William, who was attending the Djarragun School was receiving a Youth Allowance of approximately $200.00 per fortnight. She says that apart from the benefits just mentioned, she and Mr Elliott were not receiving any other income. 808 As to her commitments or expenses, Ms Mudu says that at the time of buying the car, two of her children, Radina and William, were going to school. There were school fees and other things to pay for such as uniforms, books and transport. She was also paying off a washing machine at the rate of $43.00 per fortnight. She would spend approximately $300.00 per fortnight on groceries. The family was living in Ms Mudu's mother's house and there were "quite a few of us living there". She says that everyone helped out with the rent and sometimes she might pay $50.00 and on other times she might pay $130.00 per fortnight in rent. She was also paying $30.00 per fortnight to "Love Springs" for a water filtration system she had purchased. She also owed $1,375.00 on her Mastercard. Ms Mudu made arrangements to pay off that debt at the rate of $50.00 per fortnight. She has assets such as furniture but has no savings in the bank. She says that she has never borrowed any money from a bank before except for the credit card she uses which she obtained in about 2002 or 2003. At the time she went to Supercheap to buy the car she had no money saved up (T, p 428, lns 22-23). She says that she planned to use the car to go to Cairns to buy clothes for her child and other things because the grocery store in Yarrabah "is quite expensive": T, p 447, lns 40-46. As to the Credit Application Form in her name, Ms Mudu says that no-one asked her about her credit card indebtedness or repayments at the time or about her rental expenses or about her personal loans. Nor did anyone ask her about her electricity bills, water bills or other utilities expenses (T, p 428, lns 31-37). 809 She says that problems with meeting the repayments for the loan to Channic arose. Amounts of $200.00 per fortnight were debited to Mr Elliott's bank account. Ms Mudu's account was not being debited with any repayment. In January 2011, she spoke to Colin and he took her to the Commonwealth Bank on Mulgrave Road. She says that "some more paperwork" had to be done. She says they went back to Supercheap having left the bank. Ms Mudu refers to a document entitled "Direct Debit Request 258 Customer Ref: 5115", under the name "PayGate". The document is signed by Charlotte Mudu. It is dated 17/01/2011. 810 Ms Mudu says that she is not sure when she signed this document. She says that after that, amounts of $248.00 were debited every second Thursday to her account, and $200.00 from Mr Elliott's account, every second Friday. 811 As to the car, Ms Mudu says that she began calling it "the bomb" from "day one". Ms Mudu says that the car "boiled" going "up on the range". It stopped on the range. It was "boiling up". She had to sit in the car for over half an hour for it to cool down and then put some water into the radiator to "get it over – at home". These events happened on the way home from picking up the car from Supercheap – "like, the same day" (T, p 435, lns 27-34). Also, there was a crack in the windscreen. Ms Mudu had to pay for a windscreen "out of my own money" (T, p 435, lns 38-41). She says the steering wheel would sometimes lock up when she was driving the vehicle. She was worried that this might cause an accident. She says that the engine was "all rusty" and the left side mirror was cracked. She paid to fix the mirror. She says that a week after she received the car the fan belt snapped. She telephoned Colin. He told her to bring the car in and "he would see what he could do". Ms Mudu paid for a tow truck to take the vehicle to the car yard. The towing charge was $120.00. It took about two weeks to fix the car. She says that when she got the car back the engine was "boiling over". It was "overheating". This happened "on the hill going out of Yarrabah". She says that they had to leave the car there. She says she telephoned Colin again. He told her to have the car towed again. She had to wait until she received her Centrelink payment before she could afford to pay for the tow truck. After a few weeks she telephoned Colin again to see how the car was going. He told her "alright" and after a while she went in to pick up the car again. She says that the car was "smoking up all the time". It was "terrible". She says that Mr Elliott changed the oil but it continued "smoking up". The car broke down again. It had to be towed to Supercheap again. Ms Mudu says: "I got the car back again, but as soon as I got it up on the range on Yarrabah the car was overheating again": para 65. She adds, at para 65: The radiator was boiling up. The temp in the car said it was heating up. I [rang] Colin again and told him there's something still wrong with the car. Colin asked me to get it towed again. 812 She says that she has sent the car back to Colin on the tow truck about 10 times. Every time she has had to pay $120.00. She says that Colin told her not to take the car to any other mechanics. Ms Mudu quotes his words in these terms: Don't take this car to any other mechanics, if anything goes wrong you just bring it back in here. 813 Ms Mudu says that in the end she became "fed up". She says the car was "stressing me out". She says she took the car to Richard, a mechanic, in Edmonton. Richard told her that there was nothing he could do about it because "it's the whole engine". This was in September 2011. In her affidavit, Ms Mudu says that the car is still with Richard in Edmonton. It is still "just sitting there now". The car was put into storage in Edmonton and they are charging Ms Mudu $100.00 a month for storage of the vehicle. 814 There seemed to be some confusion about the timeframe within which the car exhibited the problems described by Ms Mudu in her affidavit. That timeframe was tested by Dr Spence. Ms Mudu seemed not to comprehend some of the questions. That caused the Court to ask Ms Mudu a number of questions. In summary, her position was that the first thing she noticed was that the car began overheating. This occurred on the very first time she took the car home. She telephoned Colin and told him that something was wrong. He told her that the car would need to be towed back to Supercheap. Ms Mudu had to wait for Centrelink payments to be made before she could do that. She said that "Colin" had the car for "a couple of weeks" and then she went to pick up the car. She says that "maybe the same afternoon, I think" she noticed a problem with the steering that same afternoon. The next problem she noticed was that "black smoke was coming out" of the car and it was "smoking up". That probably occurred three days after she had picked up the car on this second occasion. It was then towed back to the dealer again. She says she then collected the car again and it started overheating when she took it "up the Yarrabah Range". The radiator was boiling. Colin told her to have the car towed again. It was towed back to Colin. At this point, Aaron went to jail. Ms Mudu's recollections of things are not clear. The car then went to another mechanic, Richard, who appraised the state of the vehicle. 815 Ms Mudu says this on the topic of hardship. 816 She says that she and Mr Elliott had "a lot of trouble making the payments on the car". She says that too much was being taken out of their accounts. Sometimes she missed her payment of $248.00 and sometimes Mr Elliott missed his payment of $200.00. She says that each of them received "a couple of letters in the mail" about their missed payments although there was not much they could do about it because they just did not have the money to pay. Mr Elliott went to jail in October 2011. After that, Ms Mudu says she "really couldn't afford to make the $248 payments any more". She says: "It was stressing me out. Aaron's Centrelink payments stopped when he went to jail": para 71. She says that in November 2011, she rang her bank, the Commonwealth Bank, and asked the bank to stop the payments of $248.00 to Colin. After that, she went to see Colin and Kevin. She had a conversation with them and told them: "I am stopping the payments. Aaron is in jail now and you have to stop his payments too". She says that: "The whole time they had been taking $200 a fortnight from Aaron's account". She says that both of them looked at her in shock. She says at para 75: They both said words to the following effect: "We don't know anything about any $200". 817 Ms Mudu says that Colin should have known about those payments. She says that she told him about them in January when she went to the bank and filled out the further paperwork. She says that she asked Kevin for a statement showing the payments she had made and the payments made by Aaron. Kevin went up to his office and printed out such a statement. Ms Mudu exhibits to her affidavit at Tab 11 a document entitled: "AHA New Start Finance Trust Loan Ledger for Loan 5115". This is the document that Kevin gave to her showing the payments. She says that she has not received a document like this before. 818 Ms Mudu says that the last time she spoke to Colin was in December 2011, just before Christmas. She told Colin this: I'm not paying any more for the car. I told you I can't make the payments. Aaron is in jail. I don't have any money. The car is at Edmonton you have to get a tow truck and pick it up. 819 Ms Mudu says that she spoke to Richard in Edmonton. He told her that he had telephoned Kevin and told him to pick up the car. 820 Finally, Ms Mudu mentioned these other matters in her primary evidence. 821 She says that when she was with Kevin at Supercheap doing the papers in December 2010, he put her on the telephone to a lady at Suncorp. A discussion took place about insurance which resulted in Ms Mudu entering into a commitment to pay about $50.00 per month for insurance. She says that she received some paperwork from Suncorp. However, she did not look at it. It may have been papers in relation to insurance. She attaches a Certificate of Insurance issued on 14 December 2010 by Suncorp to Ms Mudu for the vehicle. She says that in December 2011 or January 2012 she received a letter from Suncorp saying that her payments were overdue and that she owed Suncorp $1,300.00. She says that she did not have any money to pay that debt to Suncorp. 822 As to the bank statement for Ms Mudu's Streamline account, it shows transactions for the period 1 June 2010 to 9 September 2010. The payments for the month of August, for example, were these: Date in 2010 Transaction Amount 2 August Centrelink Youth Allowance $206.30 5 August Centrelink Pension $455.95 12 August Aus Gov Families $95.06 12 August Aus Gov Families $173.18 18 August Centrelink Youth Allowance $206.30 19 August Centrelink Pension $455.95 26 August Aus Gov Families $95.06 26 August Aus Gov Families $173.18 30 August Centrelink Youth Allowance $206.30 823 These payments amount to $2,067. 28 for the month (although that period appears to cover three fortnights in respect of the Centrelink Youth Allowance). The fortnightly payments seem to be the Youth Allowance of $206.30; the pension amount of $455.95; and the Families payments of $268.24 ($95.06 plus $173.18) which amount to regular fortnightly payments of $930.25. Mr Elliott seems to have been receiving fortnightly payments of $481.92 less deductions of $52.30 amounting to $429.62, based upon the Centrelink statement of 30 September 2010. 824 It is not necessary to set out the sequence of transactions reflected over the period of the bank statement. It is sufficient to say that within a day or so of a Centrelink payment into the account, the monies are expended by repayments such as the bottled water direct debit expense to Love Springs or cash withdrawals leaving the account in credit by a small amount or overdrawn. Plainly enough, Ms Mudu was living from fortnightly payment to payment, with no savings or reserve left in the account. She explains the nature of her expenditures both in her affidavit and at T, p 429, lns 38-47; T, p 430; and T, p 431, lns 1-28. 825 Dr Spence took Ms Mudu to each of the PAMD Act documents comprising Ex 25. She acknowledged that she signed those documents. She was asked what she thought it meant to sign such documents and she said: "Well, that's [what] he told us to do, to sign it". As to those documents, Dr Spence suggested to Ms Mudu that "Colin told you the car had a one month warranty". Ms Mudu responded: "I don't remember" (T, p 443, lns 22-23) and "No, I don't think I remember" (T, p 443, lns 41-44). PART 13: THE EVIDENCE OF MS DONNA GAYLE YEATMAN 826 Ms Donna Yeatman affirmed an affidavit in the proceeding on 16 June 2014. In that affidavit, she refers to the following matters. I will also refer to her oral evidence. 827 Mrs Yeatman was born on 17 September 1966. She was 44 years of age when she engaged with the respondents in September 2010. 828 Mrs Yeatman attended Trinity Bay High School in Cairns until Year 10. She has not undertaken any study since then. At the date of her affidavit, she was working as a part-time Activity Officer at the Age Hostel in Yarrabah. She was then working 16 hours a week each weekend. She does not receive any Centrelink benefits. She can read and write English very well. She does not speak any other language. She lives at home with her husband, Farren, her son, daughter and son-in-law. Mrs Yeatman and her husband rent a home from Queensland Housing and they pay rent of approximately $310.00 per fortnight. 829 In September 2010, Mrs Yeatman was earning approximately $696.00 per fortnight in undertaking her part-time work as described (which seems to be net of tax). Her husband was working as the Weekend Manager of "Gindaja". He was earning between $900.00 and $1,000.00 a fortnight (which seems to be net of tax): T, p 478, lns 11-12. Mrs Yeatman says that she and her husband were not receiving any financial help from their children. Their children, however, were not financially dependent on them, either. 830 The combined income of Mr and Mrs Yeatman was thus approximately $1,646.00 per fortnight. 831 Mrs Yeatman says that she and her husband had the following fortnightly expenses at the relevant time: (a) Rent was $310; (b) Electricity and gas [were] $185; (c) Austar was $100; (d) Food was about $250; (e) Mobile phone was $45; (f) Transport about $50; (g) My husband's loan repayments to Cash Converters of $207.61; (h) My loan repayments to Cash Converters of $124.57; and (i) Tax repayment of $100 to the ATO because Farren had underpaid his tax. 832 These fortnightly expenses amount to $1,372.18 per fortnight. 833 On these figures, Mr and Mrs Yeatman enjoyed a surplus income after expenses of $273.82. Mrs Yeatman says that their assets in September 2010 were worth about $2,500.00. The assets comprised household furniture and appliances. Mrs Yeatman describes her financial situation as one of "getting by". She says that she and her husband were not struggling but were in a situation of managing "to make ends meet". 834 She says that in or about late August 2010, her niece Latoya Noble bought a car. Mrs Yeatman did not have a car. She needed one because each time she wanted to go into Cairns she needed to pay someone to take her there. Cairns is about 45 minutes away from her home by car. In August 2010, she had a conversation with her sister to the effect that Latoya had purchased her car at a car yard across the road from the Earlville Shopping Centre (which she thought was called "Supercheap"). On 2 September 2010, Mrs Yeatman and her husband went to the car yard opposite the shopping centre. It was Supercheap. Mrs Yeatman says they spoke with a man named "Kevin". They told Kevin that their niece had bought a car there and asked how they would go about getting a car. Kevin asked them whether they were both working. She said that they were both weekend workers. Mrs Yeatman pointed out a maroon Commodore and asked Kevin what he thought about that car. He pointed out another car, a maroon VT Holden Commodore. Mrs Yeatman asked Kevin how much the car would cost and he said $10,000. She asked what kind of deposit would be necessary and he said $3,000. She said that she only had $1,500. Kevin said that she could put down $1,500 and then return in a fortnight and put down another $1,500 if she wanted that particular car. He said: "They go quick". 835 Mrs Yeatman agreed to put down an immediate deposit of $1,500. 836 She says that she and her husband and Kevin then went into the office and Kevin introduced them to Colin. Mrs Yeatman cannot recall whether Colin's last name was mentioned. She says that Colin gave them a form to sign and told them that this was to enable Supercheap to "do a credit check". She says that Colin wrote their names on the second page and told them to sign the document. She says: "Farren and I signed the document on top of our names": para 17. 837 The document Mrs Yeatman is referring to is an AHA Finance privacy policy statement. The document is signed by each of them above their names and in each case bears a date under their names of 2 September 2010. Mrs Yeatman says that neither she nor her husband read the document and nor did Colin read it to them. She says she understood that they "were signing the document so that he [Colin] could see if [they] could get a loan for the car": para 18. 838 Mrs Yeatman says that Colin then gave her husband a form and asked him to fill it out. He also gave Mrs Yeatman a form and asked her to fill it out. He asked for a copy of the driver's licence for each of them. He took a copy of the licences. Mr and Mrs Yeatman each filled out their form separately and signed the third page of their respective forms. 839 The form completed by Mrs Yeatman is a Credit Application Form (Tab 3 to her affidavit). The form completed by Mr Yeatman is a Credit Application Form (Tab 4 to her affidavit). 840 As to the Credit Application Form completed by Mrs Yeatman, it has her name and address. It recites her current employer as the Yarrabah Council. She says she is a Care Assistant and has been employed for 12 months. She records her income as $711.00 per fortnight: T, p 480, lns 44-47. As to the Financial Information box on p 2, she answers the question "Do you have any known credit defaults?" by recording "GE Money". She says that her rent/mortgage expenses are $115.00 per week. Her food expenses are $200 per week. Her personal loan obligations are recorded as a loan from Cash Converters with repayments of $214.00 per month. There are no entries in relation to credit cards, phone/mobile, vehicle expenses, utilities, child support or other. None of the supporting documents boxes are ticked on p 3. The document is signed by Donna Yeatman on p 3 and bears the date "2/9/10". The writing in the References box and all of the writing in the Financial Information box is her writing: T, p 481, lns 6-13. 841 Mrs Yeatman gave oral evidence about the way in which this form was filled out. Mrs Yeatman recalled that when she went to the car yard she spoke with both Kevin and Colin. As to the completion of the form, she said that Colin did "the paperwork" with them. She recalled Colin and identified him in the Courtroom. Colin asked her about "what kind of, like, bills [she] had". As to her reference to "GE Money", Mrs Yeatman said that this was an old loan and, at the time she filled out the form she was not paying GE Money anything. That is why no amount is shown in the Financial Information box. The debt seemed to be about "17 years" old and there had been credit defaults with it: T, p 482, lns 9-32. As to her rent, Mrs Yeatman wrote down the weekly amount of $115.00. She wrote down a weekly amount for food of $200.00. She also wrote down a repayment for the Cash Converters loan of $214.00. It was a fortnightly repayment and thus approximately $448.00 per month. In the form the word "week" is crossed out and overwritten with the letter "M". Mrs Yeatman did not make that change. The Cash Converters amount of $214.00 was deducted from Mrs Yeatman's account fortnightly. As to "Utilities", Mrs Yeatman made no entry in the form although in her affidavit, she describes her fortnightly expenses for electricity and gas as $185.00 and an Austar fortnightly expense of $100.00. She says that nobody asked her about those expenses. The form contains no entry for a mobile phone although in her affidavit she refers to a mobile phone expense of $45.00 each fortnight. In the affidavit, she also talks about a transport expense of $50.00 each fortnight and that amount represents the cost paid to people at Yarrabah to take her by car into Cairns and back to do shopping. She also describes an ATO expense of $100.00 per fortnight. That was an expense in respect of obligations of Mr Yeatman to the ATO. She says her husband was paying that amount. She recalls that Colin was the person asking her about her expenses. The entries she made on the form were the entries that she "could recall at the time": T, p 484, lns 9-15. She says that she signed the form at p 3. She says that nobody explained to her the term "Declaration" under which she signed. She says she believed that the form was necessary to enable a "credit check" to be done: T, p 484, lns 24-32. 842 In the case of Mr Yeatman, the form contains his name and address. It recites his current employer as the "Gindaja Substance and Misuse Centre". It recites that he had worked there for four years as a Manager/Night Watchman. It records that his gross income is $1,600.00 per fortnight. As to his expenses, he records that his rent/mortgage expenses are $460.00 per month and his personal loan repayments to Cash Converters are $417.00 per month with total monthly expenses of $877.00. None of the boxes are ticked in relation to supporting documentation. The form is signed by Farren Yeatman and is also dated "2/9/10". Mrs Yeatman was taken to the form completed by her husband. She recognised her husband's writing on the form. In the Financial Information box, she thinks that is her writing concerning Cash Converters. 843 Mrs Yeatman was not requested to provide either Colin or Kevin with a bank statement. 844 Mrs Yeatman was asked by counsel for ASIC what happened once the forms had been filled in and she answered this way: "When we filled out the forms, he [Colin] said, yes, we got approved, and then we gave the $1,500, and then we said we'll be back next fortnight … because that's when we get paid, every fortnight": T, p 485, lns 8-12. Mrs Yeatman gave evidence that she did not take the car for a test drive before electing to buy it and pay the first instalment of $1,500.00 of the deposit. She gave evidence that they were taken for a drive by Kevin "around the block". She said that she has no mechanical knowledge of cars. She did not know how many kilometres the car had travelled. She thought the price "wasn't too bad": T, p 485, lns 26-41. 845 In her affidavit, Mrs Yeatman refers to the CBPL Preliminary Test document also dated 2 September 2010. That document is in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 2/09/2010 Client Name: Donna Gayle Yeatman & Farren Warwick Yeatman Broker: Cash Brokers Pty Ltd Loan Purpose: Motor Vehicle Purchase $9,990 Cash Deposit $1,500 Capacity: Borrower 1 NET monthly income $1,540.50 Borrower 2 NET monthly income $3,466.66 Maintenance $0.00 total monthly income $5,007.16 Expenses Rent/Mortgage $498.33 Mobile Phone Prepaid Living expenses $1,300.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $0.00 Safrock Finance $634.00 repayment this loan $433.33 total expenses $2,865.66 Surplus/Deficit $2,141.50 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 846 In relation to this document, Mrs Yeatman says this. 847 First, the NET monthly income entered for Borrower 1 at $1,540.50 is incorrect. She says that her income at the time was, as a rough figure (T, p 498, lns 25-32), $696.00 per fortnight which, she says, "would have been about $1,508.00 per month". The difference between those two positions is $32.50. 848 Second, the NET monthly income entered for Borrower 2 is also incorrect. She says that her husband's income was not $3,466.66 per month. She says that her husband's income at the time was between $900.00 and $1,000.00 per fortnight (or "roundabout" $900 a fortnight", T, p 499, lns 1-2) which "would have been between $1,950 and $2,166 per month". The difference between those positions is a range between $1,516.66 and $1,300.66. Their joint monthly income would have been, on these figures, between $3,458.00 and $3,674.00. 849 As mentioned, on 2 September 2010, Mrs Yeatman paid Colin $1,500.00. He gave her a receipt for the deposit. 850 She says that on 16 September 2010 which was the day before her birthday, she and her husband went back to the Supercheap car yard. She gave another $1,500.00 in cash to Colin as the balance of the deposit. Colin gave her a receipt for that amount. She says that Colin "then went through a lengthy document with us": para 26. In her oral evidence, she says that she and her husband "… came back with the $1,500 as the last bit of the down deposit, and we may have done a bit of paperwork, and 45 minutes later, we was gone, took the car and went". 851 The document Mrs Yeatman is referring to is a Consumer Loan Contract and Mortgage No: 5083. 852 Some aspects of that document are as follows: FINANCIAL TABLE Amount of credit of the loan $8,001.50 Annual percentage rate 48% per annum Total amount of interest payable $6,546.26 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 73 consisting of 72 repayments each of $199.34 Plus a Final Repayment of $195.28 Total amount of repayments $14,547.76 Date of first repayment 1/10/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 16/09/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 853 The Comparison Rate entry is in these terms: Comparison Rate 47.8935% per annum This rate is calculated on the $8,001.50 credit amount over a 145 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 854 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 16/09/2010 Loan Draw Down Date 16/09/2010 Loan term commencing from the Draw Down Date 145 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $6,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 855 As to this document, Mrs Yeatman says that she is not sure if she saw the Credit Contract on 16 September 2010. She says that her signature does not appear on the document and nor does the signature of her husband appear on the document. She recalls that each of them did sign "a long document about the loan": para 28. She says that Colin was there the whole time that each of them signed the document. She says that Colin "flipped over the pages and told us where to sign": para 28. She says that the meeting when each of them signed the document took "half an hour to 45 minutes, including the time it took to give Colin the $1,500". Mrs Yeatman gave oral evidence that although the document is described, in part, as a mortgage, she does not know what a mortgage is. She was taken to the reference to "Channic Pty Ltd" and said that she did not know what that company is. She said, when asked whether anyone told her she was entering into a contract with Channic, that she did not "know the name of any company": T, p 486, lns 18-29. Mrs Yeatman was taken to the document and did not recall a document that looked "like that" at the time. Mrs Yeatman rather thought that the document was along the lines of the Credit Application Form. Mrs Yeatman also gave evidence that on this second occasion, she had to sign documents for the car to be transferred into her name and also documents to obtain third party insurance. This was arranged "through Colin". He took the details of the car and "was on the phone to somebody": T, p 487, lns 3-4. She does not recall the documents that she signed for these two purposes. 856 The Credit Contract at Tab 6 to Mrs Yeatman's affidavit has Mr Hulbert's signature, his name and the date 16/9/10 at p 3. It also has his signature in two places both reserved for the signature of a witness to the borrower's signature, on p 7 together with the date 16/9/10 in both places. The document is not signed on p 7 by either Mr Yeatman or Mrs Yeatman. At p 8, Box A is crossed out signifying that the borrower has not chosen to obtain legal advice. Box B on that page is dated 16th September 2010 but bears no signature by the borrowers. The "PayGate" document at p 21 of the Credit Contract is also dated 16/9/2010 but is not signed by anybody. Mrs Yeatman says that the signatures on p 7 of the contract are neither her nor her husband's signatures. At that page, neither borrower has signed the document. The only signatures on the page are that of Mr Hulbert in the place reserved for a witness to the signature of each borrower, had each borrower signed the document. 857 Mrs Yeatman further says that the Financial Table shows that the amount of the loan is $8,001.50. She says this is incorrect because a deposit of $3,000 had been paid and the cost of the car was $10,000 ($9,990.00). Mrs Yeatman also says that the contract recites a fortnightly repayment of $199.34. Mrs Yeatman says that although she cannot recall whether it was before or after she had signed the "long document", she recalls that Colin told her that if she were to pay $150.00 per week, she would pay off the loan by December 2011. Mrs Yeatman says that she agreed to that arrangement. She says that she thought she was to pay $300.00 per fortnight when she was signing the lengthy document. She says that, in fact, she paid $300.00 per fortnight from that date: paras 31 to 33. She says that she cannot remember if Colin mentioned whether or not she had to pay any fees for the loan. She says that she does not remember that she had to pay fees to obtain the loan. 858 Mrs Yeatman says that point 2 of the schedule refers to a brokerage fee to Cash Brokers of $990.00. She says that Colin did not tell her, and she did not know, that she was paying a brokerage fee. She says that no mention was made of "Cash Brokers" on or before 16 September 2010. As to the invoice for brokerage fees issued by CBPL on 2 September 2010 to Channic, Mrs Yeatman says that she was not shown that document on or before 16 September 2010. 859 Page 5 of the Credit Contract contains a repayment schedule which sets out 73 repayments, the date of the repayment and the amount of each repayment. Mrs Yeatman says that this schedule shows that repayments were to continue until 5 July 2013. She says that she did not know, on or before 16 September 2010, that the loan was for such a long period. She thought that the loan would be repaid by December 2011 "because Colin told me on the day that I signed the lengthy document that it would be paid by then because I was paying $150 per week": para 37. Mrs Yeatman says that she does not remember at any time requesting that the interest rate be reduced. She says that she did not know that she could request a lower interest rate. 860 Mrs Yeatman says that Colin did not say anything about legal advice and nor did he give either of them an opportunity to "go and get legal advice". She says that she does not remember reading p 8 of the contract which contains the boxes dealing with the topic of obtaining (or not) legal advice. She says that Colin did not draw her attention to p 8. 861 Mrs Yeatman says that p 19 of the contract says at point 25 that if she has any complaint about her credit provider, or should any complaint remain unresolved after speaking to her credit provider, Mrs Yeatman could invoke a dispute resolution process. Mrs Yeatman says that Colin did not draw her attention to this page of the contract and she did not know, on or before 16 September 2010, that she could make a complaint to the Financial Ombudsman Service (the "FOS"). 862 Mrs Yeatman says that p 21 of the contract provides for direct debits from her bank account for the repayments. She says that she did give an authority to Supercheap in these terms and she knew that debits would be made from her account. She says that her bank account was debited in an amount of approximately $300 each fortnight. 863 Mrs Yeatman gave oral evidence that she did not know whether she signed the Credit Contract (T, p 500, ln 1) and certainly the version at Tab 6 of her affidavit is not signed by her. She said that in doing the paperwork, she dealt with Colin: T, p 500, lns 12-18. Dr Spence put to Mrs Yeatman that in her dealings with Colin concerning the paperwork, she had signed a copy (T, p 500, lns 26-27) of the Tab 6 "Consumer Loan Contract and Mortgage". Mrs Yeatman observed that the document at Tab 6 was not signed by her and that she did not have a copy of a signed Credit Contract. Mrs Yeatman asked Dr Spence whether he had a copy of the Credit Contract signed by her. Dr Spence said that he did not know whether "we have a copy signed": T, p 500, lns 32-42. This exchange with Mrs Yeatman proved to be odd because Dr Spence accepted that he did not hold instructions that Mrs Yeatman had signed a copy of the Credit Contract and he was not in a position to call evidence that she had done so, notwithstanding that he was putting to her that she had done so: T, p 500, lns 44-47; T, p 501, lns 1-26. 864 She says that on 16 September 2010, she and her husband took the car with them. The invoice for the sale of the vehicle is dated 16 September 2010 and recites a sale price of $9,990.00. She says that she was not given a copy of this document on the day that they took the car. 865 Mrs Yeatman gave evidence that she understood that the purchase price of the car was $10,000.00 and that a deposit of $3,000.00 had been paid. Her understanding was that she was going to pay the balance $7,000.00 back by paying $150.00 each week. She says that no-one told her that, from that day on, after having paid a deposit of $3,000.00, she would be paying $14,547.76: T, p 487, lns 23-25. She says that no-one told her that she was going to borrow money to buy the car and no-one told her that she would be borrowing $8,001.50. This exchange also occurred in response to questions asked by counsel for ASIC at T, p 487, lns 34-47; T, p 488, lns 1-23: Q: I want to talk about interest rates. Do you know what interest is? A: I do now. Q: Back then did you know what interest was? A: If I was told about it, I would know. Q: Did anyone tell you you were going to pay 48% interest? A: No. Q: Did anyone talk to you about paying some brokerage fees? A: No. Q: Do you know what brokerage is? A: It's somebody else I've got to – like, the middleman that you've got to get it paid to. Q: And did anyone tell you about a company called Cash Brokers? A: No. No. Q: And did anyone tell you that you were going to pay $990 for brokerage? A: No. Q: When you were signing some documents, did anyone advise you that you should read all these documents? A: No. Q: And did anyone say to you something about going and seeing a lawyer? A: No. … Q: Did you read each document before you signed it? A: No. No. 866 Mrs Yeatman was then taken to the PAMD Act documents. She identified her signature and her husband's signature on the relevant documents, six in all: T, p 499, lns 26-27. She recognised the term "cooling off period". It was mentioned to her. Mrs Yeatman understood it to be a 30 day period during which time she would be able to bring the car back to Supercheap if there were "any problems with the car" and "get it fixed": T, p 489, lns 1-14. Mrs Yeatman also identified her signature and her husband's signature on another document entitled "Buyers Obligation Regarding Warranty". She said that no-one explained this form to her at the time that she was signing it. She also identified her signature and that of her husband on another document entitled "Contract to Buy a Motor Vehicle". She said that no-one explained this form to her at the time that she was signing it. She also identified her signature on a "Statutory Warranty Period" document and says that no-one explained that document to her either. There were other documents in that category to which Mrs Yeatman said that no-one explained them to her at the time she was signing them. All of these documents are part of Ex 27. As to these documents, Mrs Yeatman said in oral evidence that she did not read any of them before or after signing them: T, p 499, lns 29-31. 867 Mrs Yeatman also gave evidence of a discussion of an amount to be paid each week to pay off the car. She gave evidence that it was put to her by Colin that if she was to pay off $150.00 per week, the car would be paid off more quickly "within – just briefly like a 12 month period", "and I agreed to that": T, p 491, lns 1-8. 868 Mrs Yeatman says that about a week after she picked up the car, she made a telephone call to Kevin and told him that she was having some problems with the car. She says that Colin told her to write down a list of the things wrong with the car and to give it to Supercheap. She says he told her that she only had 30 days for Supercheap to fix the things wrong with the car and told her that she could bring the car in on the following Wednesday as that was the only day that Kevin could look at the car. Mrs Yeatman says that she cannot remember all the things that were wrong with the car. Some of the problems were these: the air conditioning was not working; the windows would not go all the way up; the vehicle did not have a spare tyre. Mr Yeatman took the car back to the car yard. Mrs Yeatman says that the car was to be ready that afternoon. However, the work had not been completed and Mr Yeatman had to find his way home to Cairns. 869 Mrs Yeatman rang Kevin about the problems with the car. Kevin told her that he could only deal with the problems on Wednesdays. Mrs Yeatman could only go back to Cairns every second Wednesday within the month as she was only paid fortnightly. It would be necessary for her to wait for her fortnightly wages payment to be able to pay for the costs of going into Cairns. Mrs Yeatman otherwise had no money. Mrs Yeatman knew that the car had to be repaired within 30 days of the purchase. She agreed that she knew about that aspect of the warranty: T, p 497, lns 25-27. Mrs Yeatman accepted that when the car was taken back to Supercheap the problems were ultimately fixed: T, p 497, lns 40-45. Mrs Yeatman then described the difficulty with making the repayments to Channic. The car was paid off "roughly about a year after" Mrs Yeatman bought the car: T, p 495, lns 41-44; T, p 6, lns 34-39. 870 Mrs Yeatman also says this, in relation to the car, at para 47: "We did not get to test drive the car ourselves, but Kevin took us for a drive around the block in the car. Colin said: 'You cannot test drive it because we are not insured under that number plate'". Mrs Yeatman says that she does not know how many kilometres the car had travelled at the time she and her husband bought the car. 871 As to documents, Mrs Yeatman does not remember whether she or her husband gave Colin or Kevin any documents apart from their driver's licences. 872 As to the repayments, Mrs Yeatman says that at the time they purchased the car, she thought that she and her husband could "just get by making the repayments". She says that it "has been a struggle to make the repayments" and she has had to "cut down on things, like we cannot have meat every night": para 46. She says that three times since they purchased the car, their electricity supply has been "cut" because they were not able to pay the electricity account because they "were stretched with the car repayments". She says that the repayment comes out of her account and if she does not have enough money in her account to cover the repayment she obtains some money from her husband and places it into her account to cover the repayment: T, p 498, lns 38-45. 873 As to the warranty, Mrs Yeatman says that apart from the one month warranty, they did not obtain any other warranty. She says that she purchased comprehensive car insurance through Suncorp which cost her $60.00 per month. The insurance period has expired and she has not renewed the insurance because she cannot afford to do so. She says that neither she nor her husband have made an application for hardship with "AHA Finance". 874 Mrs Yeatman says that she and her husband still have the car. It is in their backyard. It is not registered. It does not work at all. It broke down in around 2012. She says that sometime ago, not long before the car broke down, the repayments stopped coming out of her bank account. She assumed that the loan had been repaid. She says that before the car broke down in around 2012, there were continuing problems with the car. She says that she could still use the car but she could not afford to have the problems repaired because she did not have enough money. 875 In oral evidence, Mrs Yeatman was taken to a bank statement for her Streamline account which was in operation at the time she purchased the car. She was asked a number of questions about the pattern of her income and expenditure as reflected in the statement. For example, for the month of June, the opening balance of the account at 1 June 2010 after a debit of a minor bank fee was $10.20. She received a wages payment on 9 June 2010 of $678.50. There was a debit on 9 June 2010 of $103.80 representing a repayment of a Cash Converters loan. On 11 June 2010, there was a debit of $50.00 to "Sper" as a repayment of a penalty. There were then miscellaneous expenditures on food and other items and a cash withdrawal on 18 June 2010 which then reduced the account to $4.32. On 23 June 2010, another wages payment occurs of $705.36. A fortnightly Cash Converters debit then occurs followed by a substantial cash withdrawal, a Sper payment, a transfer fee and another withdrawal which by 1 July 2010 reduces the account to an overdrawn amount of $4.12. Mrs Yeatman would use the cash to pay such things as groceries and bills such as electricity, gas and phone. These things she paid in cash: T, p 493, lns 17-18. On 7 July 2010, another wages credit occurs of $655.64 followed by the Cash Converters repayment again on 7 July 2010 and a sequence of cash withdrawals and payments which by 9 July 2010 reduced the account to $3.98 credit. On 21 July 2010, another wages credit occurs of $711.36 and the same pattern emerges. There is a payment to Cash Converters of $103.80 and cash withdrawals which by 22 July 2010 reduce the account to a credit balance of $11.54. A similar pattern emerges throughout the month of August. Mrs Yeatman gave evidence that she did not give a copy of her bank statement to Colin or Kevin. She also said that had she been asked for a bank statement she would have provided it: T, p 510, lns 38-46; T, p 511, lns 1-2. She also gave evidence that she did not give Colin or Kevin documents such as payslips showing how much she was earning each week and nor did she give either of them documents demonstrating her expenses: T, p 515, lns 35-42. 876 The ASIC Court Book (Vol 6, Tab 27) contains a statement for the period 1 September 2010 to 19 January 2011 for the Cash Converters loan to Mrs Yeatman. Only p 1 of the statement is included in the Court Book. Page 2 takes the period to 29 February 2012. Page 1 recites that the credit provided to Mrs Yeatman was $1,620.00 for a term of seven months at an annual interest rate of 48%. It shows repayments of $124.57 with interest debits to the account. Volume 6, Tab 28 of the ASIC Court Book is a similar statement for the period 19 July 2010 to 8 December 2010 for the Cash Converters loan to Mr Yeatman. Again, only p 1 of the statement is included in the Court Book. The full statement period is 19 July 2010 to 29 February 2012. In any event, it shows the provision of credit to Mr Yeatman of $2,700.00 for a term of seven months at 48% interest. It shows payments of $207.61 with interest debits to the account. Of course, the period 1 September 2010 to 19 January 2011 for Mrs Yeatman and the period 19 July 2010 to 8 December 2010 for Mr Yeatman covers the period during which Mr and Mrs Yeatman engaged in the relevant transactions with the respondents. 877 Mrs Yeatman gave oral evidence that she continued to keep paying the Cash Converters loan in her name until it was entirely paid off notwithstanding that the last page of the statement ends at 19 January 2011. She also gave evidence that Mr Yeatman continued to keep paying the Cash Converters loan in his name until it was entirely paid off notwithstanding that the last page of the statement ends at 8 December 2010. Mrs Yeatman also gave evidence that she and Mr Yeatman told Kevin and Colin about these two loans. Mrs Yeatman also gave evidence that in order to pay the first instalment of $1,500.00 of the deposit of $3,000.00 a loan was obtained from Cash Converters. That led Dr Spence to put the proposition to Mrs Yeatman that she was "pretty keen to get this car". Mrs Yeatman said that she was keen to purchase the car not only to be able to go to Cairns but also because Mr Yeatman was a sick man. She explained that he is a diabetic and that about four years earlier he underwent open heart surgery. She explained that she needed a car due to his illness and said: "I didn't have cash lying around, so I went and got a Cash Converters loan": T, p 509, lns 32-33. As to the balance of the deposit, Mrs Yeatman gave evidence that because each of them had been paid that week, they were able to pay the balance from their account: T, p 510, lns 31-36. 878 Volume 6, Tab 29 of the ASIC Court Book contains the Certificate of Insurance issued by Suncorp to Mrs Yeatman on 16 September 2010. The monthly premium was $60.00. 879 In cross-examination, Mrs Yeatman was taken to para 28 of her affidavit in which she says that she does not recall signing the Credit Contract although she does recall signing "a long document about the loan". Mrs Yeatman gave evidence that the long document she was talking about in that paragraph were PAMD Act documents. Dr Spence put to her that, thus, it was the PAMD Act documents that Mrs Yeatman recalled Colin flipping over the pages and telling Mr and Mrs Yeatman where to sign. She agreed with that proposition and said that the meeting took about half an hour to 45 minutes: T, p 511, lns 31-46; T, p 512, ln 1. Dr Spence again suggested to Mrs Yeatman that the document she signed when with Colin was the Credit Contract and Mrs Yeatman responded by asking: "Well, how come it's not signed?": T, p 412, ln 4. Mrs Yeatman gave oral evidence that Colin did not show her the Credit Contract. She said that Colin told her that the repayments would be $199.00 each fortnight and they then spoke about paying $150.00 a week. She agreed that she had arranged for direct debit repayments and that $300.00 each fortnight was "coming out of my bank": T, p 512, lns 27-42. She could not remember whether Colin mentioned that she had to pay any fees for the loan. She said that she had never read the document described as the Credit Contract when having her conversation with Colin. She denied that Colin told her it would be a good idea to read the contract or that she should get legal advice if she wanted to: T, p 512, lns 44-45; T, p 513, lns 1-14. She denied that Colin told her about a brokerage fee: T, p 513, lns 16-18. 880 Mrs Yeatman also gave evidence that had Mr Hulbert told her that she had to pay fees, she thinks she would have remembered that matter: T, p 515, lns 44-46. She says that she would have remembered a reference to brokerage if it had been mentioned "because it would have been extra money" that she would have been required to pay: T, p 516, lns 1-8. PART 14: THE EVIDENCE OF MS MURIEL GRACE ELIZABETH DABAH 881 Ms Dabah swore an affidavit in the proceeding on 17 June 2014. I will also refer to Ms Dabah as Muriel Dabah. In her affidavit she says the following things. I will also have regard to her oral evidence. 882 Muriel Dabah was born on 10 October 1960. She was almost 50 years of age when she engaged with the respondents in July 2010. She attended the Cairns High School and left after Year 10. Her first job was "a telephone operator" for "the Council". After that, she was a Teacher's Aide at a kindergarten. She has held various cleaning and secretarial jobs "on and off". In about 2002, she obtained a job with the Yarrabah Shire Council working as a cleaner. In 2006 or 2007, she, along with others, was "put off" (retrenched) and since then she has been receiving Centrelink payments. 883 At the time of swearing her affidavit, she was receiving a disability pension which she has been receiving since early 2013. She has diabetes and asthma. She says that her written English is good. Muriel Dabah lives in rented community housing in Yarrabah. She pays approximately $320.00 a fortnight in rent. Her daughter, Deborah, and Deborah's (now) three year old son, Zaccariah (and possibly another child of Deborah), live with Ms Dabah. Muriel Dabah has another daughter, Estelle (Ms Estelle M Harris), who has two children, Latassya and Tasmia, and they also live with Ms Dabah. In 2014, Estelle was 23 years old. Estelle's children were five and four in 2014. Her daughter, Deborah, pays for the food which is approximately $300.00 per fortnight. 884 I will return to the various expenses later in these reasons. 885 Muriel Dabah says that she first knew of Supercheap because she drove past the car yard in Earlville and noticed it. She saw the car yard in about June 2010. That was three weeks before the Cairns Show. On or about 9 July 2010, she went to the car yard with Estelle. Estelle had a one year old child at the time and was only a number of weeks from having her second child. Estelle needed a car to transport the children. Muriel Dabah was not looking for a car for herself. Muriel Dabah says that there was a man called "Colin" in the car yard. However, he referred her to another man named "Kevin". She says she and Estelle had picked out a car, a Toyota Camry, which had a sign on it saying "$5,990". In her oral evidence, Ms Dabah says that Kevin picked out the Camry: T, p 647, lns 36-38. Muriel and Kevin had a conversation. Kevin said that the car "will be about $6,000" and "you will need a $1,800 deposit". He also said that Muriel Dabah would need to "go to Centrelink and the bank and get statements". She said that the car "is for Estelle not for me" and Kevin said: "It is better if there are two of you, as if one of you misses a payment, the other can make the payment". 886 Muriel Dabah says that Kevin then asked them about their income. He wrote the answers they gave down on a form. She cannot recall the questions he asked or the answers she or Estelle gave. 887 On the same day, she and Estelle went to Centrelink and obtained a Centrelink statement for each of them. They then returned to the car yard and gave the statements to Kevin that day. She identifies the two statements as a Centrelink statement dated 9 July 2010 addressed to Miss Muriel G Dabah and a Centrelink statement dated 9 July 2010 addressed to Miss Estelle M Harris. 888 As to the Centrelink statement addressed to Muriel Dabah, it contains, relevantly, the following information: Regular entitlements and payments Payment Type Amount Date Paid Newstart Allowance $453.91 6 July 2010 GST Component $8.89 6 July 2010 Rent Assistance $89.40 6 July 2010 889 The Centrelink statement contains information concerning deductions from payments to which Muriel Dabah is entitled. The only deduction is this: Deductions from your payment Payment Type Deduction Amount Date Paid Newstart Allowance Centrepay Deductions $50.00 6 July 2010 890 The Centrelink statement for Estelle Harris contains, relevantly, the following information: Previous regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $581.40 9 July 2010 Pharmaceutical Allowance $6.00 9 July 2010 Pension Basic Supplement $19.90 9 July 2010 Family Tax Benefit Part A ($158.62)* $158.62 9 July 2010 Family Tax Benefit Part B ($134.96)* $134.96 9 July 2010 Rent Assistance ($50.40)* $50.40 9 July 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 891 The Centrelink statement for Estelle Harris also contains, relevantly, the following further information: Future regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $581.40 23 July 2010 Pharmaceutical Allowance $6.00 23 July 2010 Pension Basic Supplement $19.90 23 July 2010 Family Tax Benefit Part A ($160.30)* $160.30 23 July 2010 Family Tax Benefit Part B ($136.36)* $136.36 23 July 2010 Rent Assistance ($50.40)* $50.40 23 July 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 892 As to the deductions from Estelle Harris's payment, the statement says this: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Lump Sum Advance Repayment $25.62 9 July 2010 Parenting Payment Single Centrepay Deductions $135.00 9 July 2010 893 Muriel Dabah says that on the same day she and Estelle went to the bank and obtained bank statements. They gave them to Kevin. The bank statement for Muriel Dabah is a statement for an account with Bendigo Bank Limited. The bank statement for Estelle Harris is also for an account at the Bendigo Bank. Muriel Dabah exhibits to her affidavit a copy of a statement for her account. The transactions in that statement commence on 5 July 2010 and conclude with a transaction on 1 October 2010. The statement for Estelle Harris commences on 29 April 2010 and concludes with a transaction on 20 July 2010. 894 Muriel Dabah says in her affidavit (para 25) that Estelle had enough cash with her on 9 July 2010 to pay the deposit. She says Estelle gave Kevin $1,800.00 and Kevin gave Ms Dabah a receipt for it. 895 Muriel Dabah says that after Estelle paid Kevin the deposit monies, Kevin said words to this effect: "I can't let the car go because you need to come back with more money". Muriel Dabah cannot remember whether the amount Kevin wanted was either $200.00 or $400.00. She says that a few days later, but before they picked up the car, Muriel Dabah gave Estelle the extra money Kevin had requested. Muriel Dabah says she saw Estelle give the additional cash to Kevin. Ms Dabah had a slightly different recollection about the numbers when giving oral evidence about the deposit, as mentioned later. 896 Muriel Dabah cannot remember whether she or Estelle took the car for a test drive before buying it. However, she does remember Kevin saying words to this effect: "The car has low kilometres. It's only had one owner". 897 Muriel Dabah refers to a Credit Application Form in her name. She says that the signature on p 3 of the form is her signature. She says that she did not fill in the remainder of this document. The form is dated 9 July 2010. Page 1 records an income for her of $550.00 a fortnight. Three expenses are recorded in the Financial Information box: "Rent/Mortgage $110 per fortnight; "Food" $50 per week; "Vehicle Expenses" $25 per week. As to "Utilities" the form records "Deducted from Centrelink". The total expenses are said to be $185.00 per week. Added to that amount is $370.00 per fortnight totalling $550.00. The handwritten word next to those numbers seems to be "Invest". Page 3 of the form has none of the boxes ticked for supporting documentation. 898 The Credit Application Form for Estelle Harris recites that the loan purpose is for a Camry. The vehicle price is $6,990.00 and the deposit is $1,800.00. The weekly repayment is recorded as $200.00. Ms Harris is said to be receiving $780.00 a fortnight. The "Notes" section on p 1 say "New baby in September" and "Income Increases" (presumably because she will have another dependent child). As to the Financial Information box on p 2, it notes these matters: "Rent/Mortgage $150 per fortnight"; "Food – Personal Items $150 per week"; "Utilities deducted from Centrelink". "Total Expenses" are said to be $350.00 per week. There are other handwritten notations under that number. None of the boxes are ticked on p 3 relating to supporting documentation. 899 Muriel Dabah says that she recalls Kevin asking her on 9 July 2010 about "our income but he did not ask about my expenses or Estelle's expenses": para 30. As to the Credit Application Form concerning Estelle Harris, Muriel Dabah says that the vehicle retail price stated as $6,990.00 is incorrect as Kevin had told them that the price of the car was $5,990.00. 900 Muriel Dabah refers to CBPL's Preliminary Test document which is in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 9/07/2010 Client Name: Muriel Grace Dabah & Estelle Maree Harris Broker: Cash Brokers Pty Ltd Loan Purpose: Motor Vehicle Purchase $6,990 Cash Deposit $1,800 Capacity: Borrower 1 NET monthly income $1,196.43 Borrower 2 NET monthly income $2,061.11 Maintenance $0.00 total monthly income $3,257.54 Expenses Rent/Mortgage $1,050.00 Other Loans $0.00 Living expenses $1,625.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $55.51 Radio Rentals $0.00 repayment this loan $433.33 total expenses $3,163.84 Surplus/Deficit $93.70 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 901 As to this document, Muriel Dabah says that she was not shown this document on or before 16 July 2014 (the date of signing the Credit Contract). 902 Muriel Dabah previously believed that she and Estelle had paid Kevin a deposit of $2,650.00. At Tab 9 to her affidavit, she attaches a receipt addressed to Estelle Harris in an amount of $2,650.00 for "Balance for 179 MDN Toyota Lexcen". Muriel Dabah says that she has reviewed this document. She no longer believes that a deposit of that amount was paid. She believes the deposit was $1,800.00 plus an additional amount of either $200.00 or $400.00. The document at Tab 9 of 15 July 2011 is dated a year after the purchase of the Toyota Camry and refers to an entirely different vehicle. 903 As to the deposit for the Camry, Ms Dabah gave oral evidence that Kevin asked for a deposit of $1,500.00. After Ms Dabah and Estelle returned that day in the afternoon from having obtained the Centrelink statements and the bank statements (T, p 684, lns 39-45; T, p 684, lns 43-45), Estelle paid the deposit monies of $1,500.00 in cash to Kevin: T, p 684, lns 12-14; T, p 651, lns 5-13. However, Ms Dabah says that Kevin wanted more deposit money because the interiors of the car had to be repaired. The additional amount was either another $200.00 or $400.00 or $600.00 so that the deposit was "$2,000 [or] something like that": T, p 653, lns 25-46. 904 Muriel Dabah says at para 35 that after the deposit of "$1,800 plus $200 or $400" was paid to Kevin, he told them that the interiors would need to be fixed up and they should "[c]ome back in three or four days": para 35. 905 As to the Credit Application Form in her name, Ms Dabah gave oral evidence that she signed the document on p 3 and wrote her name on it. She says no-one explained why she was being asked to sign the document and no-one at the car yard asked her about her income or expenses: T, p 651, lns 28-35; lns 37-38. She says she does not recall any discussion of whether she may have had any known credit defaults: T, p 651, lns 40-44. Although the form recites a rental expense of $110.00 per week, her rent was $300.00 per fortnight: T, p 652, ln 1. Although the form recites an expense of $50.00 per week for food, she says there was no discussion of how much she was paying for food (T, p 652, lns 3-5) and in any event her daughter, Deborah, was paying for the household food. Although the form recites vehicle expenses of $25.00 per week, she says she did not tell anyone at Supercheap she was paying that amount. She says her petrol, insurance, registration and servicing of her car was $70.00 per fortnight: T, p 652, lns 13-20; para 10 of her affidavit. She cannot recall whether she had any loans outstanding at that time (9 July 2010): T, p 652, lns 22-23. She says that no-one at the car yard went through her bank statement with her and asked her about her expenses: T, p 652, lns 30-31. Ms Dabah says that the gross income amount of $550.00 per fortnight on p 1 of her Credit Application Form was not on the document when she signed it: T, p 690, lns 36-41. More generally, Ms Dabah says that she and Estelle were together the whole time at the car yard and she could hear what anyone else was saying to Estelle: T, p 652, lns 35-38. In oral evidence, Ms Dabah said that she recognised the handwriting of her daughter, Estelle, which she described as a bit "scribbly", on p 3 of the Credit Application Form in Estelle's name. She says that none of the writing on pp 1 and 2 is Estelle's handwriting. She does not recall any discussion at the car yard with Estelle about Estelle's rent or expenditures on food or utilities, notwithstanding the entries noted at [898] of these reasons. The only discussion she recalls with Estelle at the car yard was Estelle being asked about when she expected to receive her next benefit payment so that she could top up the deposit of $1,500.00 with a further amount: T, p 652, lns 40-47; T, p 653, lns 1-14. Ms Dabah was taken, in cross-examination by Dr Spence, to the Credit Application Form in her name and the handwritten expenses on p 2. She denied the proposition put to her that those amounts were actually her expenses: T, p 682, lns 7-9. 906 Muriel Dabah says that "on or about" 16 July 2010, she and Estelle Harris went back to the car yard. She says that on that day "we signed some documents". She says that Kevin filled out all the documents and "we just signed everything". She says: "I remember that we signed all the documents on the same day" and "Estelle and I were excited that someone would offer her finance". She says that they picked up the car on this day. She recalls that it was just before the Cairns Show. 907 Muriel Dabah refers to a Credit Contract entitled Consumer Loan Contract and Mortgage No: 5031. She says that this is one of the documents she signed "on or about 16 July 2010". She says that her signature appears on pp 6, 7 and 20. Page 6 is the place at which the Borrower signs the document. Page 7 is signed in Box B indicating the Borrower has chosen not to obtain legal advice and p 20 is the "PayGate" direct debit request. Muriel Dabah says that the dates on those pages, 16 July 2010, are not in her handwriting or that of Estelle Harris. She says that she is not sure whether the dates were there when she signed the document. She is not sure whether the date on the document was the date she actually signed the document. 908 As to this document, she says that Kevin did not explain any of the "loan contract" before she and Estelle Harris signed it. She says that Kevin "just said 'sign here'". She says there "were a lot of documents to sign" and that she was "just signing pages". 909 The Credit Contract contains the following information: FINANCIAL TABLE Amount of credit of the loan $6,201.50 Annual percentage rate 48% per annum Total amount of interest payable $2,927.23 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 46 consisting of 45 repayments each of $198.49 Plus a Final Repayment of $196.68 Total amount of repayments $9,128.73 Date of first repayment 23/07/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 16/07/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 910 The Comparison Rate entry is in these terms: Comparison Rate 46.8097% per annum This rate is calculated on the $6,201.50 credit amount over a 91 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 911 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 16/07/2010 Loan Draw Down Date 16/07/2010 Loan term commencing from the Draw Down Date 91 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $5,190.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates [This box contains 46 instalments showing the number and date of each repayment and the amount of each repayment.] Interest is calculated in accordance with Clause 5 of the General Conditions. … 912 The Credit Contract recites that Borrower/Mortgagor No. 1 is Muriel Grace Dabah and Borrower/Mortgagor No. 2 is Estelle Maree Harris. 913 Muriel Dabah says that after she and Estelle had signed all the documents, Kevin told them that the repayment was $198.49 each fortnight. She says that Kevin had told them that the repayments would be about $180.00 a fortnight. She says that when Kevin told her of that amount, she thought that Estelle would pay $200.00 per fortnight and try and get ahead of the payments. She says that although p 7 of the contract recognises that the Borrower might choose to obtain legal advice, Kevin did not mention that matter to her. Muriel Dabah also says that although she signed the PayGate direct debit document at p 20, the fortnightly repayment was "not meant to come out of my account". She says that her "understanding" was that it would come out of Estelle Harris's account. She says that Kevin did not explain to her that p 20 was an authority to withdraw money from her account. She says that she remembers Estelle telling Kevin words to the effect: "I lost my key card and my payments are going into Mum's account" (which seems to be a reference to the Centrelink payments for Estelle Harris being paid into Muriel Dabah's account). Muriel Dabah refers to the Supercheap invoice dated 16 July 2010 for the sale of the vehicle at $6,990.00. She says that she was not provided with a copy of this document on or before 16 July 2010. 914 As to the fees and the interest rate recited in the Credit Contract, Muriel Dabah says that she did not think that there were any fees that she had to pay for the car or the loan. As to the brokerage, she says at para 45: I never knew that I was paying a brokerage. I do not know what brokerage means. Kevin made no mention of "Cash Brokers". The only company I know of is "SuperCheap Car Sales". 915 At para 46, she says this: "I never knew that we were paying 48% per annum interest". 916 As to the event of signing, Muriel Dabah says this at para 47: I signed a lot of documents on or about 16 July 2010. Kevin was with us the whole time and turned the pages over and told me where to sign and initial. I do not know how long it took to sign all the documents. I did not read all the document[s] before I signed them. Estelle and I were together when we signed the documents and she did not read them all either. 917 As to the loan repayments, Muriel Dabah says this at paras 48 to 51: 48. When Estelle and I signed the contracts, I thought that Estelle would be making the repayments. I did not know that they were trying to direct debit from my bank account. 49. In or about November or December 2010, Estelle moved out and no longer helped out with the repayments. Estelle left the car with me when she moved out. After Estelle moved out, I told Kevin and a girl who I think might be Colin's daughter from Brisbane that I did not want the direct deposits [debits] to be taken from my bank account and that I would go in and pay them cash. 50. I had some issues with repayments I made in cash not being put on my account. 51. In late 2010 or early 2011, we got a really high bill for our electricity. I was getting letters from ERGON saying that they would turn my electricity off. I had to pay the electricity. That was when I missed two payments for the car. I called Kevin up and we had a conversation to the following effect: I said: "I cannot make a payment because I have to pay my electricity bill, which is really high." He said: "That is okay, just make up the payment as soon as you can.: 918 In oral evidence as to the Credit Contract, Ms Dabah says that she went back to the car yard on 16 July 2010 with Estelle. Ms Dabah acknowledged her signature and initials on the document and also those of Estelle. She acknowledged that she signed the PayGate Direct Debit Request. She gave evidence that no-one explained that document to her: T, p 655, lns 1-7. Ms Dabah gave evidence that she and Estelle just signed and initialled the Credit Contract where indicated by "Kevin": T, p 655, lns 16-22. She says that she "didn't look at [the contract]" and no explanation at the time was given about it: T, p 655, lns 24-25. Nor did she understand that she was borrowing money: T, p 655, lns 27-29. Ms Dabah gave evidence that she thought that the document was concerned with putting down a deposit and her daughter paying instalments to get the car. She thought that Estelle had signed a form enabling repayments to be made. Ms Dabah could not recall signing any form enabling direct payments out of her account. Ms Dabah says that no-one told her the Credit Contract was a loan agreement or a mortgage or who or what Channic is or was: T, p 656, lns 10-24. She says that she "only knew the word Supercheap": T, p 656, ln 25. She says that Estelle was present at the signing. She says she did not hear anyone tell her or Estelle that there was to be a borrowing of $6,200.00: T, p 656, lns 33-34. She says that no-one told her that an interest rate "was to be 48%" (T, p 656, ln 38); or that the total repayments would be $9,128.73 (T, p 656, lns 44-45); or that the repayments would be in addition to the deposit already paid (T, p 657, lns 1-2). She says that no-one mentioned the name Cash Brokers or the term "brokerage": T, p 657, lns 4-11. Nor does she recall anyone telling her that she could take the contract away and read it or that she could obtain legal advice about it. She says that no mention was made of the Legal Ombudsman: T, p 657, lns 13-19. 919 Ms Dabah was also taken to the PAMD Act documents comprising Ex 31. Form 37a is signed by Ms Dabah and Estelle Harris. It is dated 16 July 2010. So too is the acknowledgement section of Form 38a-1 (Notice of Statutory Warranty). So too is the "Contract to Buy a Motor Vehicle" (the "Sales Contract"). So too is Form 38a-2 (Statutory Warranty Period) and Form 63 (Guarantee of Title to Buyer). Each form is also signed by Mr Hulbert. As to these forms, Ms Dabah acknowledged her signature and that of Estelle (apart, perhaps, for the Sales Contract: T, p 658, lns 16-19). As to Form 37a, Ms Dabah gave evidence that she did not recall signing the form and nor did she recall any discussion of a "Cooling Off Period": T, p 657, lns 37-38. She says Form 38a-1 was not explained to her and nor was the Statutory Warranty form (Form 38a-2) explained to her: T, p 658, ln 31. 920 Ms Dabah gave evidence that at the signing there were a lot of documents to sign and initial. She recalls that her hand was getting sore from signing. Ms Dabah recalls that at the signing of all the documents, the only discussion she recalls about the loan repayments was this: "Just told Estelle that she [would] be paying 180 something dollars … a fortnight": T, p 658, lns 39-42. Ms Dabah says that had she known that she was agreeing to borrow money she would not have borrowed the money: T, p 658, lns 44-46. 921 A question arose about with whom Ms Dabah and Estelle met on 16 July 2010 and whether it may have been Mr Hulbert or Mr Humphreys. Ms Dabah gave evidence both by affidavit and orally that they met with "Kevin". Dr Spence put the case of the respondents that the meeting and signing took place with Mr Hulbert. Ms Dabah said: "No, it wasn't. It was Kevin". As to whether she was sure about that when pressed, she said: "Kevin was with me the whole time – me and Estelle": T, p 663, lns 21-26. Dr Spence returned to this topic later in the cross-examination in this way at T, p 675, lns 46-47; T, p 676, lns 1-9: Q: You never read the loan contract before you signed it, though, did you? A: No. Because Kevin – he just said, "just sign this". He said, "you have to sign here, initial there, sign there". And we just flipped through it because there was a big stack that we had to … Q: See, it wasn't Kevin, was it, who was with you when you signed the contract? A: It was Kevin. Q: It was Colin. A: It was Kevin. Q: All right? A: Kevin was with me all the time. 922 Muriel Dabah says that in January 2011, she received two letters in the mail. One was addressed to her and the other to Estelle Harris. The letters said that the repayments had fallen behind. Muriel Dabah does not have the letter sent to her. The letter to Estelle Harris is dated 24 January 2011. It recites arrears of $1,680.37 by 28 February 2011. 923 Muriel Dabah says that these letters frightened her and a couple of days later she went to the car yard to speak to Kevin about the matter. Kevin told her to speak to "Georgie", a secretary at the car yard. Muriel Dabah thinks that she is either Kevin's or Colin's daughter. She says that she had an argument with Georgie over the letter and asserted that she did not owe that much money. Ms Dabah gave oral evidence about this topic, mentioned later in these reasons. 924 Muriel Dabah says that she was struggling to pay her bills and she was making a few late payments (that is, repayments on the loan). She says that she always telephoned to say that she would be making a late payment. When she called, she would ask to speak to either Kevin or Colin and they would put her "on to Georgie". She says that in about April 2011, Colin came to her house and gave her some documents. They had a conversation to the following effect: Colin: You have not made any payments since August 2010. MD: That's not right. I have only missed two payments. I rang Kevin to let him know that I could not make the payments. Colin: Come here and sign this. Drive the car out of your yard. 925 Muriel Dabah says that she signed the document as Colin had asked her to. She says that the document was "something to say that the car had been repossessed". She says that Colin did not read it out to her and she "didn't get a copy of the letter". She says that Colin "called a tow truck that was hiding around the corner and it picked up the car from the street the same day". 926 Muriel Dabah exhibits to her affidavit two other letters. The first is dated 13 April 2011 from AHA Finance to Muriel Dabah bearing the reference "Notice of Default Under Mortgage Contract". It gives notice of a missed payment due on 1 April 2011 and asserts that unless the default is remedied by paying $1,172.82 by 18 May 2011, various actions would be taken. The second letter is also dated 13 April 2011 from the same company to Estelle Harris asserting the same matter. Muriel Dabah remembers receiving these letters in the mail on or about 13 April 2011. She also exhibits to her affidavit a loan ledger sent to her by mail. She cannot recall the date of receipt. It is a loan ledger dated 28 April 2011 under the heading "AHA New Start Finance Trust: Loan" for Muriel Dabah and Estelle Harris, Loan No. 5031. Muriel Dabah says that she was "… meant to use the ledger to match all the repayments up with all the receipts I had, but I never did this, so I do not know which payments are missing from the ledger". 927 As to the car, Muriel Dabah says that she has not heard anything from Colin, Kevin or Georgie since Colin took the car in April 2011. She says that Colin did not say anything about taking her to Court or trying to get back the money owing on the loan. 928 Ms Dabah also gave oral evidence about the burden of the repayments. She says that Estelle was paying the repayments. However, she moved away from home and left Ms Dabah to make the repayments. Ms Dabah says she met with Kevin at the car yard and told him that she could pay $200.00 each fortnight in cash but would not be able to provide a direct debit. She says that Kevin agreed to the cash payment proposal. She says that thereafter, she went to the car yard and paid cash each fortnight, "for a while", until she began receiving large electricity bills. She says that Kevin agreed that a repayment could be "skipped" until the electricity bill was under control provided that she made the payment as soon as she could do so thereafter. She says that a repayment was missed on 21 January 2011 (although the Notice of 24 January 2011 to Estelle says that the arrears amounted to $1,680.37), due to the pressure of the need to pay an electricity account that had been "shooting up". She says that she met or spoke with Kevin about the missed payment. Kevin referred her to "Georgie". She says that Georgie was angry about Ms Dabah "missing a few payments". Ms Dabah contested that matter (apart from one missed payment due to the pressure of her electricity account) and said she would bring in the receipts for the cash fortnightly payments she had been making. Ms Dabah says that she brought in the receipts for the cash payments paid directly and presented them to Georgie. There were "a few of them". They had not been recorded on the computer. She says that Georgie entered the payment details: T, p 660, lns 11-44. 929 Ms Dabah also gave oral evidence that at the date when she went to Supercheap to purchase the car, she had no mechanical knowledge of cars or whether a particular car was "good" or whether it worked or not. Nor did she test drive the car or have it inspected by the RACQ: T, p 661, lns 31-47. 930 Ms Dabah exhibits a bank statement to her affidavit for her account at the Bendigo Bank. It shows transactions between 5 July 2010 and 1 October 2010. She says that the statement is "like the one" she gave to Kevin on 9 July 2010. For the month of July, for example, the account shows a credit of a Centrelink Newstart benefit of $502.20 (a Muriel Dabah benefit: T, p 649, lns 22-25). On 8 July 2010, it shows an Aus Gov Families payment of $134.96 (an Estelle Harris benefit: T, p 649, lns 40-44, T, p 669, ln 14). It shows another Aus Gov Families payment on 8 July 2010 of $520.12 (another Estelle Harris benefit: T, p 649, lns 45-46; T, p 650, lns 1-3). This payment either is, or contains, a "bonus": T, p 669, lns 44-45. The regular fortnightly payment is $134.96. The statement also shows a payment of a Centrelink pension benefit of $472.30 on 8 July 2010. Ms Dabah gave evidence that the Centrelink pension was a benefit paid to Estelle: T, p 650, lns 6-9. She later confirmed that she was receiving, in 2010, a Newstart Centrelink benefit and Estelle was receiving a pension. For example, Ms Dabah was receiving a Newstart benefit in September 2010 (28 September 2010, $505.46) and the pension benefit of 30 September 2010 of $576.37 was a benefit paid to Estelle: T, p 689, ln 46; T, p 690, lns 1-29. 931 Ms Dabah also explained that the benefits payable to Estelle were paid into Muriel Dabah's account and in order for Estelle to access her benefits, Ms Dabah would go to an ATM with her and draw out Estelle's benefit money for her: T, p 650, lns 24-29. She would use her keycard for the account, Estelle having lost her keycard. 932 One matter concerning Ms Dabah's oral evidence should be noted. Ms Dabah is an Aboriginal woman from the Yarrabah community. She was approximately 54 years of age when giving her oral evidence. From time to time, Ms Dabah became quite confused about the questions put to her and had trouble understanding a number of matters. For example, she had difficulty recognising and comprehending the entries in documents she was taken to when questioned or the subject matter of those questions. She was also in some real physical difficulty suffering severe leg pain. At one point Ms Dabah asked for a short break as she said she was starting to shake a little and clearly she was upset: see T, p 681, lns 1-6; lns 27-31. See also the confusion reflected at T, p 680, lns 1-26; T, p 678, lns 1-10; T, p 675, lns 4-28. PART 15: THE EVIDENCE OF MS RHONDA LORRAINE BRIM 933 Ms Brim affirmed an affidavit in the proceeding on 18 June 2014. In her affidavit, she says these things. I will also refer to her oral evidence. 934 Ms Brim was born on 13 July 1982. She was 27 years of age when she engaged with the respondents. 935 She attended the Mareeba State High School for Year 8. The family moved to Weipa for three or four years. She attended the Weipa High School for Year 9. She completed Year 9 before leaving school. In or around 2001, she commenced undertaking a literacy and numeracy TAFE course for 10 months. However, she did not complete it. She has not undertaken any other formal education. She has a partner, Mr Franklin Hudson, and they have seven children. At the date of affirming her affidavit, her children were aged five weeks, two years , four years, six years, eight years, 10 years and 17 years. All of her children live with her. At around the beginning of 2010, her partner moved to Weipa. He is from Weipa. In about December 2010, he resumed living with Ms Brim. She says that he is not at home most of the time as he stays with his cousin, south of Cairns, and returns when she needs help with the children. 936 She says that she can read and write perfectly well. She rents her home from the Department of Housing. It costs her $275.00 per fortnight. She is not currently in paid employment. Her partner is unemployed. 937 At the time Ms Brim became involved with Supercheap, she and Mr Hudson were unemployed and entirely reliant upon income from Centrelink. Her partner was then living in Weipa. She was living with four of her children and was pregnant with her fifth child who was born about six weeks later, on 18 August 2010. Her partner is paid entirely separately by Centrelink which is his only source of income. Ms Brim did not receive any rent assistance as she was renting a house from the Department of Housing. 938 I will return to the various expenses described by Ms Brim later in these reasons. 939 In April 2010, Ms Brim went to hospital for a 20 week ultrasound scan during her pregnancy. A week after the scan, she was told by her doctor that her baby had a club foot. The doctor told her that after the baby was born she would need to bring the child in for treatment every week. The treatment involved a plaster cast being applied and weekly visits for six to 12 months although at the age of four, her son was still having a plaster cast applied each week. Ms Brim lives 15 minutes from the hospital and there are public buses but it is often very difficult with the children. In about June 2010, Ms Brim and her father were shopping at the Raintree Shopping Centre and she saw a printout or "flyer" on a community billboard which said something like: "Bad credit okay, Ex-Bankrupt okay, Pensioners okay, Defaults okay". It also said: "20 minute approvals" and "Centrelink OK": T, p 695, lns 1-3; affidavit Ms Brim, para 17. She says that there were strips at the bottom to tear off which said: "Please contact Kevin". There was also a telephone number to call. The tear-off strip did not have the name of the company or a business but it said "Car Finance". Ms Brim exhibits an example of that document to her affidavit. 940 She says that she tore off one of the strips and showed it to her father. She called the number the next day or the day after that and spoke to a man named "Kevin". She said: "I need an automatic and it needs to be large enough for my family. It would really be better if it was a 4WD as my partner's family is out of town". He said: "Come in and we will do an application. We are at Mulgrave Road, Earlville"; "Based on what we have, it would only be a van": T, p 695, lns 12-13. 941 After she spoke to Kevin on the telephone, she went to the car yard on 29 June 2010. There was a sign out the front which said "SuperCheap". It was in Mulgrave Road, Earlville, next to Centrelink. She asked for Kevin. They had a conversation about the cars that were available. Kevin suggested a "van" which was a "Ford Spectron". She said: "On the phone I said I need an automatic 4WD". Kevin said that he did not have an automatic 4WD and added that: "The Spectron would be good for your family": T, p 695, lns 27-31. She says that she was disappointed and wanted to get her father's opinion about the proposed car. She also says that she had no real choice as she needed a car and no other vehicles were big enough for the family. She says that she had been unable to obtain finance otherwise due to being unemployed: T, p 695, lns 33-41. 942 Ms Brim says that this conversation then occurred: RB: Can I get another opinion? KH: Yes, but we will do the application form now. What kind of income do you have? RB: I don't work, I get money from Centrelink. KH: How many kids do you have? RB: I have four kids. KH: I need an income statement from Centrelink. RB: I will go across the road and get a statement from Centrelink. 943 She says that he filled out a form while they were talking and asked for her name, date of birth and contact number. She says he put that information in the form. Ms Brim then refers to a Credit Application Form. She says that this is the form Kevin filled out while they were talking. She says that on p 1 of the form, the handwriting in the box entitled "Personal Details" is all her handwriting. She says that at the time she signed the form and wrote in her personal details, there was nothing written on p 1 next to "Vehicle Retail Price" or "Client Deposit" or "Weekly Payment". The form, as exhibited to her affidavit, recites a price of $8,990.00, a deposit of $1,500.00 and repayments of $200.00 per fortnight. 944 She says that the handwriting in the box entitled "Financial Information" is not her handwriting and she does not know who wrote in the figures in that box: T, p 696, lns 16-22. In answer to the question of whether she had any known credit defaults, the word "Yes" is written on the form. The form recites a Rental/Mortgage amount of $140.00 per week. It recites Food Expenses of $100.00 per week. It says that her Phone/Mobile expense is "Prepaid". It recites a Personal Loan expense of $70.00 per week and an expense on Utilities of $30.00 per week. It recites Total Expenses of $360.00 per week. As to these expenses, Ms Brim says the food item is incorrect. With four children, the expense was between $250.00 and $300.00 per fortnight. She says that the long term Cash Converters loan was $70.00 per fortnight and the other one was $238.00 per fortnight. Ms Brim says she did not have a discussion with anyone at the car yard about these expenses and nor was she asked to bring in a proof of expenses or a bank statement: T, p 696, lns 32-46; T, p 697, lns 1-21. 945 She says that the handwriting in the "References" box on p 2 is her handwriting. She says that she signed the form on p 3 and wrote down her name. The form is dated 29 June 2010, in her handwriting. 946 As to the Financial Information box, Ms Brim says that Kevin did not ask her: any other questions about her income or expenses; any questions about her assets; or whether she had any debts. He did not ask her to provide any documents other than a statement from Centrelink. 947 Ms Brim says that on the same day, 29 June 2010, after filling out the information she says she wrote on the form (as described), she went to Centrelink (next door to the car yard) to obtain a statement. It took about two hours. She then went back to the car yard and gave the statement to Kevin. She says that Kevin looked at it and said words to the following effect to her: "You have been approved": para 30. She says that Kevin told her that she was "approved", as she was handing over the statement. She says that Kevin "did not do any sums on the basis of [her] Centrelink statement": para 31. In oral evidence, Ms Brim says: "When I came back (with the Centrelink statement) was when he told me that he had done the application while I was gone, and that I had been approved for finance": T, p 695, lns 22-25. Ms Brim says that at this point there was no discussion of the price. Ms Brim asked Kevin about the price. He did not respond. She adds: "I don't know if he heard me, or just ignored the question": T, p 697, ln 44. 948 Ms Brim no longer has a copy of the Centrelink statement that she gave to Kevin. However, she attaches to her affidavit a Centrelink statement that she printed off online on 28 November 2011. She says that the information in this document is similar "if not the same as the information in the document I gave to Kevin". 949 The Centrelink statement is dated 28 November 2011 and it contains the following information: Regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $581.40 20 May 2010 Pharmaceutical Allowance $6.00 20 May 2010 Pension Basic Supplement $19.90 20 May 2010 Family Tax Benefit Part A ($627.76)* $627.76 20 May 2010 Family Tax Benefit Part B ($133.56)* $133.56 20 May 2010 Large Family Supplement ($21.56)* $21.56 20 May 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 950 The Centrelink statement contains information concerning deductions from payments to which Ms Brim is entitled. The deductions are these: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Centrepay Deductions $235.00 20 May 2010 Family Tax Benefit Lump Sum Advance Repayment $25.06 20 May 2010 Parenting Payment Single Centrepay Deductions $30.00 20 May 2010 Parenting Payment Single Lump Sum Advance Repayment $38.50 20 May 2010 Parenting Payment Single Rent deduction Scheme Deduction $254.10 20 May 2010 951 Ms Brim says that after she handed her Centrelink income statement to Kevin, she had a conversation about the deposit. She asked him what deposit would be required. The following conversation occurred, to this effect: RB: I cannot pay the deposit until July when I get the baby bonus [in July: T, p 698, lns 8-9]. I will be able to pay $1,500 for the deposit. KH: $2,000 would be better for the deposit. RB: I can only do $1,500. KH: Ok, that will do. Let me know when you get the bonus money, but we will hold the vehicle for you. 952 Ms Brim says that Kevin did not give her any documents that day. The only document exchanged was the Centrelink statement which she gave to him. 953 The next day, Ms Brim and her father went back to the car yard to have a look at the car. It was locked. They could not have a look at the engine. They could not see the number of kilometres travelled or anything on the dash. They could see that there was no air conditioning in the console. The middle of the steering was missing. Ms Brim says that, at this stage of her dealings with Kevin, he had not mentioned anything about the price of the car. She says that on the first day he avoided the question of price. She says that she understood she would be obtaining "some sort of finance, but I didn't know about other fees besides the $1,500 deposit". She says that her father is "pretty good with cars" and wanted to have a look at the car and make sure the engine was "okay". She says that Kevin "wouldn't let us in the car". She says that Kevin said words to this effect: "We are still working on the car but it will be ready for you by the time you get your baby bonus". Ms Brim says that she was not happy with the car and "would have liked to choose [her] own [car]". She says that Kevin told her that the car he had selected was "the only car we have that is big enough for your family" paras 36-40 of Ms Brim's affidavit. She says that they did not take the car for a drive (T, p 698, ln 45) because it was still being repaired: T, p 699, ln 1. 954 Ms Brim says that when she was at the car yard to look at the car with her father, she had a conversation with Kevin about a 1996 Ford Fairmont Sedan which she "had in [her] backyard". She said to Kevin: "You can buy a Ford Fairmont I have in my backyard. It doesn't have a gearbox though". Kevin said: "I'll have to look at the car". She says that that afternoon, Kevin and Colin came to her house and had a look at the Ford Fairmont. Colin said this to her: I will give you $300 for it, but [it] will cost $100 to tow. The rest of the $200 will go on the deposit for the vehicle, but if you decide not to take the Spectron, I will not give you back the car because it will be part of the deposit. 955 She says that she accepted his offer and that day, or very soon after that day, Kevin and Colin made arrangements for the Fairmont to be towed away. They towed the vehicle away before Ms Brim paid the deposit for the Ford Spectron. 956 As to the deposit, Ms Brim says that on 22 July 2010, which was a Thursday, she was paid a Baby Bonus which seems to be an amount of $2,847.00 paid into her account as an Aus Gov Families payment (as reflected in her bank statement). On the same day she called Kevin and told him that she had received the Baby Bonus and he said: "Come in and we will do the contract". On the same day, Ms Brim went to the car yard and paid a deposit of $1,500.00 by EFTPOS. On the day she paid the deposit, Kevin gave her a receipt. He also said this to her: The muffler needs to be replaced, so you cannot take the car now. It also needs a roadworthy certificate. Once I get the roadworthy certificate, you can come in and get the car. Tomorrow [Friday] is a public holiday for Cairns Show Day, so call on Monday. It should be ready by Monday [26 July 2010] afternoon. 957 Ms Brim says she rang on Monday, 26 July 2010 and spoke to Kevin. He told her that the mechanic was not in and so the car was not ready. 958 She telephoned on 27 July 2010 and spoke to Kevin and he told her this: I've put it in for the roadworthy certificate, it should be ready by the end of the week. The muffler has been repaired, but the boys are still doing the roadworthy check. The vehicle needs to be good for you. 959 She says that Kevin had not called her by Friday, 30 July 2010 and so she called Kevin on that day. Kevin told her that he needed to find a cover for the steering wheel, "maybe next week". 960 On Thursday, 5 August 2010, she called and spoke to Kevin and he told her that: We had to send an old part to Brisbane to be fixed, now we are waiting for the part to come back from Brisbane. 961 On Tuesday, 10 August 2010, she called and spoke to Kevin and he told her that the part had not yet arrived. 962 On 18 August 2010, Ms Brim had her baby. He was born with a club foot and the doctors confirmed that he would have to be at the hospital for appointments every week for the next six to 12 months. She says she was "really worried at this point" that she did not yet have a car. She said that she would need to have a car to take her baby to the hospital each week. 963 On 20 August 2010, she telephoned and spoke to Kevin and he said this: The part has arrived, but the mechanics say it needs a new turbocharger. We've ordered it from New Zealand because we couldn't find it in Australia. 964 On 13 September 2010, she spoke with Kevin on the telephone. He told her that the turbocharger had arrived. However, there was now "a problem with the radiator". 965 On 21 September 2010, Kevin called Ms Brim in the late afternoon and said this: The car is ready, but you can't pick it up today as it is too late. Come in tomorrow and we will do the paperwork and you can pick up the car. The paperwork will take some time to get through. 966 The following day, 22 September 2010, Ms Brim returned to the car yard and spoke with Kevin. At this point, no agreement had been reached about the price or how much the repayments might be each week or fortnight: T, p 702, lns 15-20. Ms Brim says that Kevin told her that she would need to go through the contract with Colin. Ms Brim exhibits to her affidavit a copy of Consumer Loan Contract and Mortgage No: 5086. As to the Financial Table, the Credit Contract contains this information: FINANCIAL TABLE Amount of credit of the loan $8,301.50 Annual percentage rate 48% per annum Total amount of interest payable $6,945.05 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 77 consisting of 76 repayments each of $198.06 Plus a Final Repayment of $193.99 Total amount of repayments $15,246.55 Date of first repayment 23/09/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 22/09/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 967 The Comparison Rate entry is in these terms: Comparison Rate 46.2921% per annum This rate is calculated on the $8,301.50 credit amount over a 153 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 968 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 22/09/2010 Loan Draw Down Date 22/09/2010 Loan term commencing from the Draw Down Date 153 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $7,290.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 969 As to the Credit Contract, Ms Brim says that she recognises her initials on each page and her signature at pp 7, 8 (Box B in relation to Legal Advice) and 21 (the PayGate direct debit form). 970 Ms Brim says that she and Colin sat down together with the contract. Colin went through the contract with her. He drew her attention to the cost of the car by saying, when pointing to the figure of $8,301.50 in the Financial Table: "[t]hat's how much the vehicle is going to cost". He also drew her attention to the interest rate and said: "… and it is 48% per year". Ms Brim says that, at the time, she thought the amount of $8,301.50 included the interest. She also thought that because she had a bad credit history, she would need to pay a quite high amount of interest at 48%. She says that she thought the $1,500.00 deposit and the additional amount of $200.00 (from the sale of the Fairmont) would "come off the $8,301.50": paras 62 and 63. She says that she "didn't really think much of 48% interest rate at the time" because she was paying about 22% interest at Radio Rentals. The 48% interest rate did not seem unusual to her. She says: "My eyes just went to the $8,301.50": para 64. 971 She says that Colin did not draw her attention to anything in the schedule on p 2 and, in particular, the brokerage fee of $990.00. She says that she did not know that she was paying "any other sort of fee". She also says this at para 65: I did not know that I was paying $990 for brokerage. I did not understand what brokerage was until an ASIC officer explained it to me. 972 She says that Colin took her to p 5 of the Credit Contract. She says that she knew she was going to be paying $198.06 per fortnight over three years. She says that Colin drew her attention to the notion of "repossession" and p 6 of the contract which contains an observation under the heading "Financial Health Warning", in these terms: "You may lose the property offered as security if you default and do not remedy it when required". 973 As to the signature on p 7, she accepts that she signed the document at that point. The date is not her handwriting. She cannot recall whether Colin drew her attention to the box on p 7 headed "Important" (as set out at [311] of these reasons). As to the boxes on p 8 concerned with obtaining legal advice, Ms Brim recalls Colin saying: "Instead of signing the contract today, you can get a legal representative". Ms Brim says at para 70: I couldn't wait, so I went ahead and signed it. I had already waited 2 months. My baby had already been born in August 2010 and I needed the car to get to the hospital. 974 As to pp 9 to 20 which contain the "General Conditions", and an Information Statement, Ms Brim says that Colin briefly went through them but she cannot remember anything in particular about them. 975 She says that she gave Colin her bank account details. She understood that by signing the PayGate direct debit request she was authorising repayments to be directly debited from her account. 976 In oral evidence, Ms Brim says that the only time when she knew "anything about a price" was when she "saw [the $8,301.50]" in the Financial Table of the Credit Contract when pointed out by Colin: T, p 703, lns 2-4; lns 10-11. Ms Brim says that Colin said that this amount "was the price of the vehicle": T, p 703, lns 13-14. He did not say anything about the "deposit" or the "repayments": T, p 703, lns 14-15. Ms Brim says that although she understood interest "in general" and had entered into agreements with Radio Rentals with interest rates of 22% and 17%, she did not "understand completely" what an interest rate of 48% "meant": T, p 703, lns 22-36. Ms Brim accepts that Colin told her "about the interest rate" and that "he showed me the $8,301.50". She says that "he pointed to [it]": T, p 727, lns 2-3; ln 25; lns 28-29. She says that "[h]e showed me the 48 per cent per year (T, p 727, ln 18; ln 25) [but] … [t]hat's all he showed me": T, p 727, lns 11-13. Ms Brim says that she assumed that the amount of $8,301.50 was the "total amount … [b]ecause no one told me how [much] the car was worth" and "when I looked at it, it wasn't worth $8,000, that's for sure", in her opinion: T, p 726, lns 15-16. In oral evidence, she says that she does not recall Colin mentioning the total repayments figure of $15,246.55. She says that nor did Colin mention that she would be paying $15,246.55 (T, p 726, lns 6-9) plus a deposit of $1,700.00 for the car (T, p 703, lns 45-46). 977 Ms Brim says that had such a figure been mentioned she would not have purchased the van: T, p 704, ln 12. She says she would have tried to get finance elsewhere although it would have been almost impossible based on her earlier experience of trying to do so. 978 In oral evidence, Ms Brim says that Colin did not mention Cash Brokers and she did not "know anything" about paying brokerage. She does not recall any discussion of brokerage. She thinks she would probably remember an amount of approximately $1,000.00 had there been a discussion of brokerage of that amount: T, p 704, lns 39-42. Ms Brim also put it this way in response to Dr Spence: "[Colin] didn't show me a brokerage fee. If he would have, I would have noticed that": T, p 727, lns 34-35. 979 In oral evidence, Ms Brim says that she did not understand who or what Channic was, at the time of signing the Credit Contract: T, p 704, lns 25-35. 980 Ms Brim acknowledges in oral evidence that Colin took her to the Schedule of Repayments "for the next three years" at p 5 of the Credit Contract: T, p 705, lns 3-4. She says that by this time, she had paid a deposit of $1,500.00. A discussion occurred concerning the purchase of Ms Brim's Ford Fairmont for $300.00 resulting in a further $200.00 deposit amounting to a deposit of $1,700.00 in all. Ms Brim says that Mr Hulbert told her that if she "decided to pull out of the van" she would not "get the Ford back". She says that Colin told her that if she missed payments the van would be repossessed: T, p 705, lns 27-28; lns 31-32. 981 Ms Brim recalls a "brief" discussion about the matters at p 7 of the contract (see the text at [973] of these reasons) although she does not recall what was said: T, p 705, lns 34-40. She says that she did not read anything under the heading (in this text) "Important Things You Must Know": T, p 728, ln 46. 982 As to the p 8 matters concerning obtaining legal advice, Ms Brim says that she did not cross out Box 1 (the option to obtain legal advice) although Colin did tell her that she could seek legal advice if she wanted to: T, p 705, ln 46. She says that she told Colin that she chose not to obtain legal advice because: "I had already waited two months for the vehicle and I needed the vehicle now for the baby for hospital": T, p 706, lns 1-2. 983 Ms Brim says that she was engaged with Mr Hulbert for "only about 20 minutes" (T, p 706, ln 9) from the beginning of the signing to the end of the signing: T, p 706, lns 21-22. 984 As to the Credit Contract, Ms Brim says that she signed the pages first and then initialled each page. She accepted that in the case of other contracts (such as the Radio Rentals and Cash Converters contracts) she had read the contracts before signing them. She said that in those cases, however, "[t]hey got me to read contracts before I signed anything or purchased anything": T, p 725, lns 17-18. She added: "Colin did not": T, p 725, ln 20. The following exchange occurred with Dr Spence at T, p 725, lns 22-38: Q: … didn't you realise it was a good idea to read a contract … before you signed it? A: Colin went through like this … "This is for this and this is for this. Sign that. This is for this". Who even gave me the time to sign it? Not him. Q: See, I suggest to you he told you you could read the contract? A: He told me I could read the contract, I could seek legal advice, but he didn't give me the time either. I waited two months for a vehicle. So of course I'm not going to waste any time with signing – looking through a contract when my son needed a vehicle to get to the hospital every week. Q: But, in fact, you could have said to Colin, "Yes. I would like to take the opportunity to read the contract". A: I could have but I didn't, because I waited two months for something I put a deposit on and didn't receive yet. Q: So you were impatient to get the car? A: Yes. 985 In oral evidence, Ms Brim accepted that she was "excited about actually getting the vehicle" because then she would not "have to pay for a taxi to take my son to the hospital every week": T, p 728, lns 33-35. She says that she told Colin about her son having a club foot, on the day of the signing of the documents which was the only occasion up to that point that they had spoken. She accepted that she was "impatient" although, in context, she added this: "… after waiting two months after paying for a deposit [in July]": T, p 728, lns 17-18. This further exchange occurred at T, p 729, lns 17-21 with Dr Spence: Q: You had the option, didn't you, to read through [the Credit Contract] if you wanted to? A: If he would have let me, though. Again, he just explained briefly what those were about and continued on turning the page. Q: See, you could have read through [it] if you had wanted to? A: I could have but I didn't. 986 Ms Brim also refers to a document entitled "Contract to Buy a Motor Vehicle". She recognises her signature on that document and she thinks the date is in her handwriting. She recalls looking at this document. She says it caused her to think that the total repayments she would be making for the car were $8,990.00. That document also recites a deposit as having been received "Rec #" of $1,700.00 resulting in a "Financed Amount" of $7,290.00. Ms Brim also refers to six other documents comprising PAMD Act forms and a Security Interest Certificate. She says that she recognises these documents as copies of documents she received from Colin on 22 September 2010 (when she took possession of the car) and she says that she signed the documents. She says that on the day she signed the contract, 22 September 2010, Colin told her that the cooling off period did not apply. She says that she understood from the PAMD Act documents 38a-1 and 38a-2 that she had a one month warranty for the vehicle. She says that neither Colin nor Kevin told her of that matter. She says that she assumed it to be so because it had been the case when she bought the earlier car, namely, the Ford Fairmont Sedan. 987 Ms Brim says that neither Kevin nor Colin asked her for any documents other than her Centrelink statement. 988 As to the PAMD Act Form 37a (Cooling Off Period), Ms Brim gave oral evidence that Mr Hulbert told her on 22 September 2010 that the Cooling Off Period did not apply because she had already paid a deposit in July: T, p 706, ln 36-38. As to the "Contract To Buy A Motor Vehicle" document, Ms Brim says in oral evidence that this was the first document she saw "that had a dollar value on anything" and "this is why I assumed the entire thing was $8,990": T, p 707, lns 11-13. She added at T, p 707, lns 15-20, by way of explanation, this: Because down the bottom it says Settlement Total [$8,990.00 made up of a financed amount of $7,290.00 after taking account of a deposit of $1,700.00] that's what I assumed was the entire total, including, like, the contract for finance, like, paying everything out plus the deposit. I thought it was all just together and that's how much the total of the vehicle was going to be. 989 See also Ms Brim's answers to Dr Spence at T, p 730, lns 1-21. She says that because she was not aware of the price of the vehicle, she thought the amount of $8,990.00 was the "contract in total, not just the price of the vehicle". 990 In oral evidence, Ms Brim says that she understood the notion of a 30 day statutory warranty (PAMD Act Forms 38a-1 and 38a-2). Form 38a-2 recites that the warranty starts on 22 September 2010 and ends on 22 October 2010. However, as to the warranty and the related "Buyers Obligations Under the Statutory Warranty" document (s 244, PAMD Act), Ms Brim says that Mr Hulbert told her that "the statutory warranty had already run out" because the deposit had been paid in July and the van was being taken in September: T, p 708, lns 7-12. 991 More generally, Ms Brim says that she and Colin were "going through" these PAMD Act documents "together" and these documents were all signed at the same time as the signing of the loan contract: T, p 707, ln 42; T, p 708, lns 14-20. Again, she says that the entire process of signing all the documents took 20 minutes. 992 As to the PAMD Act documents, this exchange occurred with Dr Spence at T, p 734, lns 39-46: Q: Yes. Okay. When you signed those documents, had Mr Hulbert taken you through what those documents were? A: I explained to you, he did briefly take me [to] what they were about – not all of them; only particular ones. Q: And did you really understand what he was telling you? A: Not really. Q: And did you really care? A: Not really. I just wanted the vehicle that I had been waiting two months for. 993 She says that on 22 September 2010, she took possession of the car. She says that when signing the contract, Kevin said words to her to this effect: "The car makes a weird noise if you accelerate too much. The kids will call it the fart car". Ms Brim says that on 22 September 2010, she had a conversation with Colin to this effect: RB: My family is up the Cape, I once drove my Ford Fairmont to Cape York. CH: You won't be able to take it up there. It won't make it up Gillies Range. Don't load the car up either. This type of vehicle is not designed to be packed up. 994 Ms Brim says that she did not make any repayments on the loan between the period when she paid the deposit in July 2010 and when she took possession of the car on 22 September 2010. She says the first payment was meant to come out the next fortnight. However, she did not have money in her account. The debit came out of her account a fortnight later. At the time she bought the car, she felt that she needed the vehicle and that she would "make the repayments work". In oral evidence, Ms Brim put it this way: … I had tried to figure things out to make it work, but a lot of the times I was going to Cash Converters for advance loans on my payments [Centrelink Parenting Payments] just to sort of make ends meet. 995 Ms Brim says that sometimes she obtained cash advances in advance of her Centrelink payments. Those advances were required to be repaid by fortnightly repayments deducted through the CentrePay system. 996 Ms Brim says that before she purchased the car, her experience was that she would have some money left over at the end of each fortnight but not as much as $198.00. She says she knew it would be difficult and that she might not be able to make the repayments. 997 Ms Brim also gave oral evidence that she was trying to make the $200.00 repayments "but I was also paying for taxis because the car wasn't working": T, p 709, ln 34. She added at T, p 709, lns 36-39: And because of the children, like, I can't just jump in a normal cab. I need to order a maxi cab, which adds on a 50 per cent surcharge. So a lot of my money is just spending on taxis, getting my son to the hospital and back and then taking the kids around for different things that they have to go for – I had to use a cab. 998 Ms Brim also gave oral evidence that during the period of the repayments she had to cut back on some matters such as her daughter's High School expenses. She became upset when giving the following example: "My daughter was chosen to go to Brisbane for Peninsula AFL and I couldn't afford to send her down": T, p 712, lns 19-20. She says that Ergon Energy also threatened to cut off electricity supply for failure to pay accounts: T, p 712, lns 22-24. 999 As to the problems she experienced with the vehicle, she says that the car was "running okay" when she took it home. However, it was making noises and it was difficult to change the gears. She used the car on 23 September 2010 and "it was really straining to get over 75km/h". She says that she "made do" with the car for about two weeks. However, it was still making "strange noises". She took the car back to Supercheap on 6 October 2010 because the fuel gauge was broken and the car was still making strange noises. They made some repairs. She collected the car on 7 October 2010. After collecting the car on that day, she drove it to Smithfield and then back home. Later that afternoon, she attempted to go to the shops to get something for dinner that night. However, the car would not start. 1000 On Saturday, 9 October 2010, she needed the car to drive her father to Kuranda because her father's younger brother had just died. She says she could not drive him there because the car would not start. She says she telephoned Supercheap on that day and spoke to Kevin. He said words to this effect: "Colin is coming into the office a little later, you will need to wait for Colin to call you back". Colin telephoned Ms Brim later that day and said words to this effect: "I can't help you until Monday as no mechanics work on the weekend". 1001 Ms Brim exhibits to her affidavit a one page letter dated 12 October 2010 addressed to Mr Hulbert. This letter was drafted by ICAN in conjunction with Ms Brim. The letter says this: Mr Colin Hulbert Supercheap Car Sales … After purchasing a Ford Spectrum 1990 model from your dealership, I have noticed excessive black smoke coming from the exhaust system; the car itself has limited power. The revs are erratic on the vehicle and when driving the vehicle [one] finds it hard to change gears (I suspect something wrong with the transmission). When going up a slight hill or when ask[ed] to accelerate the engine is making noises I suspect the reason why it is blowing out black smoke. The fuel gauge still doesn't work on the vehicle when I had asked this to be fixed when purchasing the vehicle. Since this car is still under warranty, I would like an assessment to be done addressing these concerns. Rhonda Brim 1002 Ms Brim says that Colin then agreed to fix the vehicle. She took the car to Supercheap on 13 October 2010. The repairs were completed on 16 November 2010. 1003 In oral evidence, Ms Brim says that when she picked up the car, Mr Hulbert said: "That should be it now": T, p 710, ln 28. She says, however, that although the letter of complaint refers to black smoke coming from the vehicle and a fuel gauge that did not work, neither of those problems were fixed. Ms Brim says that Mr Hulbert told her that repairing the fuel gauge was too much effort and a new fuel gauge would cost $500.00. Mr Hulbert said that he had chosen not to replace it. 1004 On 19 November 2010, the car broke down again when she was at her sister's place. Colin made arrangements to have the vehicle towed away. The car was returned to Ms Brim a few days later. 1005 In or about early April 2011, on a Saturday, Ms Brim went out in the car. However, in the car park the car would not start. Ms Brim telephoned Colin to tell him that the car had broken down. She told Colin the location of the car. Ms Brim's father went to the car and picked up Ms Brim and the children. On the following Monday, Colin picked up the car from the car park. The following day after that, Ms Brim spoke to Colin's mechanic on the telephone, although she cannot remember his name. She says that he told her the car had a "wiring problem" and to "come and pick up the car". That day, Ms Brim went to the car yard to pick up the car. She noticed that the wiring problem had been "fixed up with sticky tape": para 96. 1006 Ms Brim explains, in oral evidence, the events that happened after she collected the car, in the following way at T, p 711, lns 3-16: Q: What happened then? A: … we drove down Mulgrave Road and I had to stop at a traffic light. And then I stopped, and my Dad was tailing behind in his vehicle, because he took me over to collect the car. And then when the traffic lights turned green and I went to go, the car wouldn't move. I had it in drive, tried to accelerate; the car just wouldn't move. It was just sat there, high revving it, and then when I rang them [Supercheap] from where I was they said I will have to wait for a tow truck, which they charged me 80 bucks for as well. Q: Okay. And what happened to the car next? A: They came and grabbed it. The mechanic came and looked at something – wiring again, obviously, had slipped out – and then he sort of fiddled around with stuff then stuck tape there again, and then said, "the car should get you home". I got home and the – like, the car made it home, and then when we tried to jump in the car again it wouldn't start again, so it just sat in my driveway for about two months. 1007 Ms Brim says she telephoned Colin and said this to him: You need to fix the car. You need to replace the flywheel. I really cannot afford the payment. The car spends more time in your garage than it does [in] my driveway and you are still taking a lot of money. I can't afford the car anymore. 1008 Ms Brim says that she cannot remember Colin's response. She says that in or about June 2011 she again called Colin and they had a "heated discussion" about the things that needed to be repaired. She recounts the conversation at para 99 in these terms: RB: Maybe you should just come and take it. CH: You will be breaching the contract then. RB: The vehicle does not work. CH: You have to take it to be fixed. RB: It is your job to sell me a decent vehicle. I will stop repayments. CH: You know you have to make repayments or I will take you to court. RB: I can't afford it. CH: You seem to be doing alright now. RB: I am paying for a car I am not using. I am getting by just barely. I have to pay for buses and taxis because the car I'm paying for from you doesn't work. I can't go and visit my family. 1009 Ms Brim described these events in oral evidence in this way at T, p 711, lns 19-44: A: … like, every time I tried to ring Colin he said it had passed the one month warranty, so they couldn't help me unless I paid for it. Q: And … in your affidavit you say that led to a heated conversation between you and Colin? A: Yes, that was on the phone. I called Colin and asked him to fix the vehicle, and I abused him on the phone for selling me a lemon. Q: Yes. A: And I wasn't polite about it … I was rude and arrogant but, at the same time, you know, that was – I tried to be nice from the very beginning but then I got frustrated. Q: Yes. A: And I was abusive to Colin. But then there was – still he didn't help. He was taking my money for something that was a lemon that he sold to me. … Q: Yes. And I think you mentioned before that you were still having to pay taxis … to take your boy to hospital? A: Yes – to the hospital. Q: And how often per week? A: Every week. Every Wednesday he had to go to the hospital and he still has to go to the hospital. 1010 During this conversation, Ms Brim told Colin that there had been some damage to the vehicle as the front windscreen had been smashed. Ms Brim says that Colin told her he would fix the windscreen. The next day or so after the heated conversation, one of Colin's mechanics came and picked up the car. Ms Brim gave the mechanic the key. Ms Brim sent a text message to Colin a few days later to this effect: "If you gave [give] me a better vehicle I will find a way to pay out the contract". She says that Colin did not respond to the text and she has not spoken with Colin since. She says that after the car was picked up, another payment was taken out of her bank account. She says she changed banks in July 2011 to stop Colin from being able to take payments from her bank account. 1011 At the time Ms Brim purchased the car from Supercheap she says that she was incurring a range of expenses and she describes them this way at para 10: (a) my electricity was $60 per fortnight; (b) I paid $275 per fortnight in rent; (c) I had to make payments on leases I had with Radio Rentals of $155.00 per fortnight – I later found out that this was only meant to be about $136.99 per fortnight and Radio Rentals credited the difference to the next lease I got with them, but at the time I thought I was meant to be paying $155 per fortnight; (d) school fees of $40 per fortnight; (e) I spent $250-300 per fortnight on food and groceries; (f) I was paying Cash Converters $70.62 per fortnight for a short term loan, which showed up on my bank statement as "SAFROCK FINANCE" [a "long term" loan: T, p 694, ln 12]; (g) I was also paying Cash Converters about $238 per fortnight for a cash advance, which showed up on my bank statement as "CASH ADVANCE" [a "short term" loan: T, p 694, ln 12]; (h) I spent $25 per fortnight on re-charging my prepaid mobile phone. 1012 Ms Brim says that at the time she purchased the car, she also had deductions from her Centrelink payments. One deduction was $37.50 and another was an amount between $25.00 and $35.00. In terms of her assets, Ms Brim says that she just had normal household goods at the time she bought the car. They would have been worth about $4,500.00. She also owned the Ford Fairmont Sedan although it did not have a gearbox. 1013 As to the repayments, Ms Brim says that she made about 20 payments in total of $198.06 each plus a deposit of $1,700.00 resulting in total payments of $5,661.20. She says the loan was for three years. She expected the car to last longer than three years. She says that if the option had been available to her of going elsewhere to buy a car and obtain finance, she would have done so. She says she went to Supercheap because she had "no other option". She says no-one else would finance her for such a purchase because she was unemployed. She says that she had tried to get finance in the past. She says that she "figured from the flyer [she] saw in Raintree Centre that SuperCheap would accept [her]". She said that she had purchased a car "years ago" on "in house finance" from Bungalow Finance. She says that that firm had stopped providing in-house finance. She says that that previous car had cost $5,000.00 in total but could no longer carry all of the children and it no longer worked. She says she would have gone back to Bungalow Finance had they still been providing in-house finance "because they were great last time, they explained everything to me and the car they gave me worked exactly how they said it would": para 113. 1014 Ms Brim says that she compiled a document between 12 October 2010 and June 2011. That document (Tab 15 to her affidavit) is entitled "Contacts Made Between Myself And Super Cheap Car Sales". She says that the information contained in the document is correct to the best of her recollections and that she first started drafting this document after her meeting with representatives of ICAN on 12 October 2010. Ms Brim was told to write down the dates that she had contact with Supercheap and what was said in the course of those engagements. 1015 Ms Brim says that after that meeting with ICAN, she went home that afternoon and over the next couple of days she wrote down her recollections of what had happened up to that point. She says that the dates may not be entirely correct. However, the entries that post-date 12 October 2010 were written down shortly after the interactions that took place. The dates from that point, she says, are correct. She says that the entry for 27 July 2010 might suggest that she paid the deposit before she offered Supercheap the Ford Fairmont Sedan. However, she corrects that matter by saying that she recalls that she paid the deposit after she offered the Ford Fairmont to Supercheap. 1016 Ms Brim exhibits to her affidavit a copy of a bank statement with the Commonwealth Bank for her "Streamline" account for the period 1 June 2010 to 31 August 2010. For the months of June and July, for example, the account shows the following credits: Date in 2010 Transaction Amount 3 June Aus Gov Families $133.56 3 June Aus Gov Families $339.26 3 June Centrelink Pension $284.70 17 June Aus Gov Families $133.56 17 June Aus Gov Families $359.48 17 June Centrelink Pension $284.70 18 June SAFROCK FINANCE $600.00 1 July Aus Gov Families $133.56 1 July Aus Gov Families $386.44 1 July Centrelink Pension $284.70 15 July Aus Gov Families $136.16 15 July Aus Gov Families $786.51 (Annual July School Bonus) 15 July Centrelink Pension $308.10 22 July Aus Gov Families $346.75 22 July Aus Gov Families $2,847.00 (Baby Bonus) 1017 As to her income and expenses, Ms Brim gave evidence that the bank statement identifies at any one time the amount of money that was available to her. She would take out cash to pay expenses. She would not otherwise carry cash with her. She would also use her credit card for a lot of things. The pattern of expenditure shows that she was entirely dependent upon her benefit payments and exhausted them, on expenses, quickly upon receipt of her benefits. 1018 Ms Brim exhibits to her affidavit a copy of her Rental Agreement with Radio Rentals dated 29 May 2008. The agreement relates to a seven piece dining set and couches. It provides for 18 monthly payments of $221.03 comprising a rental amount of $194.15 and fees of $26.88. The total amount payable over the lease period is $3,978.54. Ms Brim says that although the lease talks about 18 months, she recalls that all the leases from Radio Rentals were actually for a period of three years and at the end of the period, $1.00 would be paid to acquire title to the goods. She says that she recalls this because she furnished her house through the use of these sorts of leases from Radio Rentals. Ms Brim says that this agreement was current at the time of her dealings with Supercheap, Channic and CBPL. She gave oral evidence that the repayment was $155.00 a fortnight. 1019 The two final documents exhibited to Ms Brim's affidavit are these. The first is a copy of a Radio Rentals tax invoice dated 15 May 2010 in relation to the lease of a Daewoo television. The second is a copy of a Radio Rentals tax invoice dated 17 June 2010 also in relation to a television. Ms Brim says that she was still paying monthly instalments for the lease of the television when she took up the loan with Channic. The Radio Rentals lease was to be for a period of three years. She paid off the television in 2013. Ms Brim gave evidence that she understood the Radio Rentals agreements to operate on the basis that she would make lease payments which operated as payments of the purchase price and at the end of the three year period, she would own the property: T, p 716, lns 44-46; T, p 717, lns 1-2. 1020 As to the level of her sophistication concerning cars, Ms Brim gave evidence that she did "not really" have any understanding of the prices of motor vehicles. She thought that by looking at the van it was worth about $2,500.00 to $3,000.00 in value. Ms Brim said that not having seen the amount of $15,246.55, she was comfortable with the amount of about $8,000.00 "assuming that was the total of everything" even though she did not know the value of the vehicle: T, p 714, lns 45-47. 1021 Ms Brim says that at the time she became involved with Supercheap she had two deductions from her Centrelink benefits. One was a repayment of $38.50 of a Centrelink advance, deducted from her Parenting Payment (which must be a fortnightly repayment) and the second was a repayment of "between $25 and $35" of another Centrelink lump sum advance (again fortnightly) deducted from her Family Tax Benefit. One repayment was for a period of 12 months and the other for a period of 18 months. PART 16: THE EVIDENCE OF MR VANCE HENRY GORDON AND MS MAY ESTELL STANLEY 1022 Mr Gordon affirmed an affidavit in the proceeding on 16 June 2014. 1023 Mr Gordon died prior to the trial. However, the affidavit was tendered under the provisions of the Evidence Act 1995 (Cth) without objection. Plainly enough, the respondents were not able to test the evidence of Mr Gordon. The evidence of Mr Gordon must be assessed in that context. 1024 Mr Gordon was born on 31 July 1932. At the time of affirming his affidavit he was 81 years of age. He was 78 years of age when he engaged with the respondents in September 2010. 1025 Mr Gordon attended the Yarrabah School and was taught by Aboriginal teachers until he turned 14. He deposes that, in those days, "once you turned 14 you left school and went to work". When he left school, he commenced doing work on the "Sanitary Cart". He then had a number of jobs doing farm work on seven different stations. Mr Gordon deposes that he worked as a farmhand at three stations. He worked "at the railway for 8 years". He worked as a cane cutter, a drover and as a jockey, as well. He then managed the Rehabilitation Centre in Yarrabah for a number of years when the manager was away. He cannot recall exactly in what years he did that work. He deposes that he often was not paid for the work he did. The money was always sent back to the Mission Manager at Yarrabah. He deposes that he received a small amount of pocket money. He worked full time until he retired when he was 60 years of age. 1026 He deposes that he is "pretty good" with his written English and spoken English. However, if he receives a letter in the mail that he does not understand, he asks his wife or his niece to help him break down the letter so that he might understand it properly. He deposes that he speaks English very well. He deposes that he knows a little of his father's language although he deposes that when he was growing up the Mission Managers would not allow him to speak that language. He deposes that he has a number of adult children that, at the date of his affidavit, were no longer living with him. 1027 In 2010, he lived with his partner, May Estell Stanley. After January 2012, Ms Stanley developed Alzheimer's disease. On 7 March 2014, Ms Stanley passed away. After that, one of his grand-daughters, Zoe, lived with him and looked after him. 1028 In January 2012 when ASIC took its initial statement from him, Mr Gordon's hearing was "starting to go". In 2010, his hearing was about the same as it was in January 2012. It gradually became worse with the result that at the date of affirming his affidavit, he could only hear people when they spoke very loudly. 1029 He built his own house at Yarrabah with his own money without any help from the Council. In that sense, Mr Gordon was a self-reliant man. He lived there for about 18 years. He did not have to pay any rent there. He moved from there in 2013. 1030 In 2010, he decided that he needed to buy a car because his 4WD was broken down and both he and May Stanley had medical conditions which required them to travel to town for appointments. They lived a long way outside the main towns. He wanted to buy an automatic car with a towbar because he could not drive a manual car well and he had a boat which he wanted to tow. He says he "saved up a couple of pension payments" and borrowed "a little bit of money off my son to come up with the deposit". He deposes that he did not realise that he would have to borrow any money to buy the car. 1031 Mr Gordon first heard of Supercheap cars when his 4WD vehicle broke down and he decided that he needed a new car to deal with travel to medical appointments. In September 2010, his son, Errol, told him that Errol had purchased a car from a dealer at Cairns cheaply and said his father should "have a look around". On 29 September 2010, he went into Cairns with his son to see the car yard where his son had purchased his vehicle. He arrived at the car yard and began looking at the cars. Errol went over to a man working in the car yard and that man came over to Mr Gordon and asked him whether he wanted to buy a car. Mr Gordon recounts in his affidavit that he said: "Yeah if I can get one. I don't drive a manual. I drive an automatic and I need a car with a towbar so I can tow my boat". 1032 Mr Gordon recounts that the man told him he could not have any of the automatic cars, or cars with towbars, because they were already sold. The man pointed to a green station wagon and said that Mr Gordon could buy that one. Mr Gordon recounts that it was not the car he wanted and it did not do any of the things he needed it to do. However, he needed a car to travel to medical appointments and that was "the only one there so I thought I would take it". The man that spoke to Mr Gordon was a "tall thin old fella with grey hair". There was another man at the car yard that was a bit shorter than the man who was talking to Mr Gordon. Mr Gordon recounts that he "asked the man how much the car would be". It seems that Mr Gordon was speaking to this second shorter man, although that is not clear. 1033 In any event, the man said that the car would cost $3,000.00 and he asked Mr Gordon whether Mr Gordon could "come up with $1,500 for the deposit". Mr Gordon asked his son to go over to the bank and withdraw money from Mr Gordon's account. Mr Gordon and his partner, May, had $1,000.00 in the bank. Mr Gordon gave this money to the tall man. The tall man said this amount would not be enough. Mr Gordon asked his son to go to the bank and take the other $500.00 out of his son's bank account. Once Mr Gordon's son returned and Mr Gordon then had $1,500.00 in cash, the "tall man that had pointed out the green car" asked Mr Gordon to "come inside". He told Mr Gordon to give the deposit to his secretary and told Mr Gordon that he would need to "sit down and fill out some papers". He asked Mr Gordon to sit down at a desk. He showed Mr Gordon some papers. The tall man sat down with him and told him where he had to sign. He was speaking a lot. Mr Gordon only ever spoke to the tall man because the shorter man was busy with other people buying cars. The tall man did not ask Mr Gordon any questions about how much money he had or what expenses he had. 1034 Mr Gordon deposes to this at para 28 of his affidavit: He just gave me lots of bits of paper one at a time and told me to put my initials in the corner. There were heaps of bits of paper and I remember thinking this is never going to end. 1035 Mr Gordon exhibits to his affidavit a copy of the Credit Application Form (Tab 2). Mr Gordon recounts that the handwriting on the document is not his handwriting. The amount of income of $1,300.00 per month recited on p 1 is approximately the amount Mr Gordon was receiving at the time, as a pension. The form recites a retail price for the car of $3,990.00 and a deposit of $100.00. None of the categories of expenditure set out in the Financial Information box on p 2 are filled out except that the total is said to be "Nil" per week. The References box is completed. The form is not signed and no boxes are ticked in relation to supporting documentation. The form is in the name of Vance Henry Gordon. 1036 Mr Gordon exhibits to his affidavit a copy of another Credit Application Form (Tab 3) in the name of "May Estell Stanley". Mr Gordon recounts that the handwriting on the document is not May's handwriting. The amount of income of $1,300.00 per month recited on p 1 is approximately the amount May was receiving at the time, as a pension. However, a line is also drawn through that amount. The form recites a retail price for the car of $3,990.00 and a deposit of $100.00. None of the categories of expenditure set out in the Financial Information box on p 2 are filled out except that the total is said to be "Nil" per week. The References box is not completed. The form is not signed and no boxes are ticked in relation to supporting documentation. 1037 Mr Gordon exhibits a copy of a Preliminary Test document to his affidavit. It is in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 29/09/2010 Client Name: Vance Henry Gordon & May Estell Stanley Broker: Cash Brokers Pty Ltd Loan Purpose: Motor vehicle purchase $3,990 Cash Deposit $1,000 Capacity: Borrower 1 NET monthly income $1,454.05 Borrower 2 NET monthly income $1,303.25 Maintenance $0.00 total monthly income $2,757.30 Expenses Home Owner $0.00 Other Loans $0.00 Living expenses $1,300.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $0.00 Radio Rentals $0.00 repayment this loan $216.66 total expenses $1,516.66 Surplus/Deficit $1,240.64 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 1038 Mr Gordon deposes that he was not shown this document before he purchased the car. 1039 Mr Gordon deposes that the man that he describes as the "tall man", did not point anything out to him on the bits of paper put before him on the desk where he was sitting. Mr Gordon deposes that he does not think that the man "really told me anything about them [the papers] but he was really good at talking". 1040 He deposes to this at para 32: The man that I was speaking to never wrote anything down while I was speaking to him. There were a couple of Asian ladies there talking in their own language and I remember thinking I think those people are talking about me and I can't understand them. What if they are trying to be sneaky. 1041 Mr Gordon deposes to this at paras 33, 34 and 35: 33. When we were out in the yard and the tall man told me I could have the green car he told me it was going to be $3,000. Even though I didn't really want a manual car without a towbar I thought I needed a car so I better get one. 34. After I had been in the shop and signed all the papers the tall man gave me the keys and told me I could take the car home. When I first jumped into the car I tried to beep the horn but it wouldn't work. I told the tall man and he said words to the following effect: "I'll get our mechanic to fix it". 35. Once the horn was fixed we drove the car home. When we got the car home I realised that the blinkers didn't work. After that I was too scared to drive the car into town. 1042 As to the deposit, Mr Gordon deposes that he gave the tall man a deposit of $1,500.00 for the vehicle on the day he took it home. He deposes that he had a lot of trust in the people and never thought they would "do me over or rip me off". He also deposes to this at paras 36 and 37: 36. … I thought that the man was going to charge me $500 for selling me the car and I would just need to pay $2,000 more. 37. I thought I had to give them the $500 they were talking about for selling me the car. I didn't realise I was borrowing any money to pay a brokerage fee. I had never heard of a brokerage fee before I was asked about it by an ASIC officer. 1043 Mr Gordon exhibits (at Tab 8) to his affidavit a document entitled Consumer Loan Contract and Mortgage No: 5089. Mr Gordon is recited as Borrower/Mortgage No. 1 and May Stanley is recited as Borrower/Mortgagor No. 2. The Credit Contract recites the following information: FINANCIAL TABLE Amount of credit of the loan $3,511.50 Annual percentage rate 48% per annum Total amount of interest payable $2,160.81 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 57 consisting of 56 repayments each of $99.55 Plus a Final Repayment of $97.51 Total amount of repayments $5,672.31 Date of first repayment 13/10/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 29/09/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1044 The Comparison Rate entry is in these terms: Comparison Rate 48.1915% per annum This rate is calculated on the $3,511.50 credit amount over a 114 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1045 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 29/09/2010 Loan Draw Down Date 29/09/2010 Loan term commencing from the Draw Down Date 114 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $500.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $2,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1046 As to that document, Mr Gordon deposes to these matters at paras 50 to 52: 50. … This is the document the tall man gave me on the day I bought my car. He asked me to sign it at the bottom of every page. He didn't explain anything about these papers to me or tell me why I needed to sign them. 51. The initials at the bottom of each page are mine but I don't remember anything about the documents. I didn't have time to look at them on the day. He was just handing me page after page and making me sign them. While I was signing the document, he was standing up, flicking each page to show me where to sign. At the same time, he was talking to an Asian lady who worked there. 52. I didn't see any legal advice before I entered the loan and no one told me that I could. 1047 Page 7 of the contract shows the signature of Mr Gordon witnessed by Mr Hulbert. The words "May Stanley" also appear on p 7 in capital letters witnessed by Mr Hulbert. That may be her method of signature. The same handwriting/signature appears at p 8 in Box B by which the borrowers choose not to obtain legal advice. Page 21 of the contract which is the PayGate direct debit request bears the signature of Mr Gordon, the initials of both borrowers and the date 29/09/10. 1048 Mr Gordon deposes at para 19 that he had never borrowed money before, or taken out a loan. He deposes that he and May usually saved up if they wanted to buy something. He deposes that they usually lived off one of their pensions and saved the other one until they had saved up enough to buy what they wanted. He also deposes that he does not know what "interest rate" means. He deposes that he has heard the words "interest rate" used before but he does not have any idea what it means. He deposes that an interest rate of 48% does not mean anything to him, either. 1049 As to the payments, Mr Gordon deposes to these matters at paras 38 and 39: 38. I didn't realise that the money I had to pay off the car would be getting taken from my account automatically. I thought I needed to go into the shop and give the money to them in person. A couple of weeks after I got the car, I went to the shop with my fortnightly payment when it was due and I tried to give the money to the tall man and told him it was my payment for the car. He told me not to give it to him. I had to go and pay the Asian woman. I paid her and she said: "Thanks very much". I can't remember whether I got a receipt or not. I'm not sure whether the payment was automatically deducted from my account this week as well or not. 39. After I made the cash payment, when I got back to Yarrabah I told my son Errol that I'd been to pay off my car. He told me that I didn't need to go and see them in person. It would just come from my bank account automatically. This was a surprise to me. 1050 Although Mr Gordon, in his statement to ASIC which he gave on 10 January 2012, said that he only made one repayment in cash, Mr Gordon deposes at para 40 of his affidavit that he may have made two repayments in cash before he told Errol that he was doing so. He deposes that in the last couple of months before January 2012, he realised that money was being taken out of his bank account and that he did not know why this was happening because he thought he had already paid off the car. He put it this way at para 41: … I would leave $200 to $300 in my account to use in my off week, but every time I went to take it out someone had already taken it. I went to the bank and told them that I wasn't getting my right pension. The bank manager looked at my statement and she told me that the people were taking money out for a car I had bought but if I wasn't happy I could go and see the car people and the bank would stop the payments. In January 2012, I was still thinking about whether I should do that. 1051 That matter is further taken up at para 42 in this way: May's daughter Jasmine came out to help me out with some financial stuff about October/November 2011, after I'd been to the bank asking about why money was getting taken out. I asked Jasmine to go and ask the car people how much I owed. She went out and I thought I only owed another $1,000 and the man told her that I still owed $3,000. I was thinking how? This man must be ripping me off. The whole car was only meant to cost $3,000 and I've been paying money for a while now. 1052 Mr Gordon exhibits to his affidavit a copy of an invoice from CBPL to Channic, in respect of both borrowers, in an amount of $500.00 for brokerage fees. Mr Gordon deposes that the first time he saw this document was when an ASIC representative showed it to him in January 2012 and, before January 2012, he had not heard of the name "Cash Brokers" before. 1053 As to the loan repayments, Mr Gordon deposes that he thought he had to pay "the man" $100.00 every two weeks until he had paid him "the $2,000 that [he] had left to pay on the car". He deposes at para 45 that, at the time, he thought he would be able to afford the payments. He deposes that he thought the car was only $3,000.00. He deposes at one point in his affidavit that money was still being taken out of his account (at the date of affirming his affidavit) although he seems to be saying that direct debits had stopped but he does not know when that happened. He deposes that he is very confused because his daughter was told, when she went to see "the car shop" that Mr Gordon still owed $3,000.00 for the car. He deposes that he did not ask the car people about the payments. At 16 June 2014, they were not taking the payments out of his account any longer. He deposes that he does not know when the payments stopped "coming out". 1054 As to the documents that Mr Gordon may have given to someone at Supercheap or otherwise, he deposes that he does not think he gave the tall man any documents except for his licence. He deposes that he does not remember being asked about Centrelink or anything. Mr Gordon exhibits to his affidavit a copy of a bank statement for his account with the Commonwealth Bank. It recites a series of transactions from 23 June 2010 to 21 September 2010. He deposes that he does not recall "giving this document to anyone at the car shop": para 48. He also exhibits to his affidavit a copy of a bank statement for an account in the name of May Stanley with the Commonwealth Bank. It recites a series of transactions from 23 June 2010 to 27 September 2010. Again, Mr Gordon deposes that he does not recall giving this document to anyone at the "car shop": para 49. 1055 As to Mr Gordon's bank statement, it shows these credits to the account for the month of July 2010: Date in 2010 Transaction Amount 7 July Centrelink Pension $671.10 21 July Centrelink Pension $671.10 26 July Centrelink Pension $1,000.00 1056 As to May Stanley's bank statement, it shows these credits to the account for the month of July 2010: Date in 2010 Transaction Amount 7 July Centrelink Pension $601.50 21 July Centrelink Pension $601.50 1057 The amount of $1,000.00 on 26 July 2010 in the case of Mr Gordon is not explained. Nevertheless, it appears in the statement. The fortnightly regular payment seems to be $671.10. If that is so, his monthly income was $1,342.20. The monthly income of May Stanley was $1,203.00. Their combined monthly income, leaving aside the $1,000.00 payment, was $2,545.20. 1058 At para 15, Mr Gordon deposes that he and May were both receiving $700.00 each, every fortnight, by way of a pension payment. He deposes that neither of them had any other income. He deposes that when he went to Supercheap in September 2010, he owned a 12 foot boat for fishing, a 4WD (for which he had paid $7,000.00) and his home at Back Beach Road. He deposes that he is not sure, however, whether he owns the land upon which he built his house and that is so because it "was all wrapped up with Native Title": para 16. 1059 He deposes that at the time he went to Supercheap to buy the car, he and May had the following expenses as he describes at para 17: (a) Electricity which was about $120 a month; (b) Food and Groceries of about $200 a fortnight. We went and did our fortnightly shop every couple of weeks when the pension came in; (c) Clothing. I don't remember the exact amount, but I think it was about $200 a month; (d) Medication/doctor fees, we usually [don't] have to pay anything when we went to the doctor in Yarrabah because of a program called "Closing the Gap", but when we went to [see] doctors in Cairns, we had to pay for prescriptions and if we had to go to Cairns Base Hospital. This was about $80 per month for me, I don't know how much May was paying; (e) Council rates or any other payments associated with the property, we didn't have to pay anything; (f) We didn't have to make any payments in relation to the boat because I owned the boat, although I had to register it and [pay] for petrol. I filled up the boat about once a month. Filling up the boat cost us about $60; and (g) We had paid off the 4WD we had and we were [sic] paid for the registration. I kept paying that until 2013. 1060 At para 18, Mr Gordon deposes that neither he nor May had any other expenses. PART 17: THE EVIDENCE OF MS LEANDREA ROSE RAYMOND 1061 Ms Raymond swore an affidavit in the proceeding on 18 June 2014. 1062 The respondents required her for cross-examination. She was medically unfit to give evidence and as unable to attend Court. The respondents objected to the admission into evidence of her affidavit. However, I admitted the affidavit recognising that if her evidence could not be tested there would be a serious question about what weight could be attributed to it. 1063 I observed that the Court would wait to see what evidence emerged, concerning her contentions, from the respondents: T, p 839, lns 19-21. 1064 Her affidavit evidence is this. 1065 She was born on 24 May 1967. When she first engaged with Supercheap in 2008 she was approximately 41 years of age. She was involved in another transaction with Supercheap, the subject of this proceeding, in 2009. 1066 Ms Raymond went to the Gordonvale High School and finished her schooling in Year 11 in 1983 when she fell pregnant with her first child. She has three daughters and one son. At the date of swearing her affidavit, her son, Thomas, was 15 years of age and he was living at home with her as a dependent child. At the date of swearing her affidavit, she was unemployed. In the past she had held various casual and part-time positions in hospitality, customer and administrative services. She identified herself as Aboriginal and Islander. She does not live in the Yarrabah Aboriginal Community. 1067 In about 2007 or 2008, she bought a car from Supercheap in Cairns. She had seen the car advertised in a newspaper for $3,990.00. She saw it in the Supercheap car yard and thought she would look at the vehicle. She says that she spoke to a man she now knows as Colin about buying the car. She knew the price of the car. Colin told her that she would need a deposit of $1,000.00. He said: "We will lend you the rest". She said that she had $1,000.00 "but I have bad credit because of problems with mobile phone bills in the past". He said that that would not be a problem. She asked him: "How long will it take?" He replied: "Not even 10 minutes, I just do it here on the computer". 1068 After that, she went to the bank and withdrew $1,000.00 to pay Colin. 1069 She says she signed a number of documents that day. She says those documents were not read to her or explained to her. However, she says that Colin did point to particular figures and numbers such as the repayments, interest and a one month warranty. She says that he "just pointed to where I should sign, and I signed it". She also says: "He did not give me any opportunity to ask questions". She says: "I was just excited that I was getting my first car" and "I never read the documents until I got home later": para 11. She says she had to make repayments of about $280.00 per fortnight. 1070 In about 2009, the car was "leaking a lot of oil" and she wanted to buy a newer car. 1071 She says that she looked at her bank statements and calculated the total amount she had paid to Colin for the car. She estimated that she probably owed about $1,000.00 although she cannot be sure of the amount because she did not receive a loan statement from Colin. In early 2009, she went to another car dealer and attempted to trade in her existing car for a new car. She was told that her existing car was only worth $500.00. The dealer said some things about the possibility of trying to get her out of her existing loan. In the end, Ms Raymond went back to Supercheap in April 2009. 1072 When she did so, Colin showed her a Daewoo which had $5,990.00 written on the front of the vehicle. Ms Raymond had a conversation with Colin in which he asked her whether she was still working. She said that she was working and Colin said: "We can trade what's owing on the Civic and put it on the Daewoo, but you must pay another $1,000.00 deposit". She agreed to provide such a deposit. She says that Colin did not ask her anything else about her job, how much she was earning or whether her work was full time or casual. 1073 She says that Colin asked her to sign "more paperwork for the Daewoo". 1074 As to the signing of the paperwork, she says this at para 19: He [Colin] just flicked through the pages, pointed at things and told me where to sign. He didn't explain anything to me in detail. When he pointed to things in the contract, I had an understanding of what he was saying, but I was only interested in getting the car and signing whatever I needed to sign. He did point out to me how much I was borrowing, the fees and charges and that the interest rate was 48%. He also told me that I had to keep paying him $280 per fortnight. I didn't get any chance to read the contract because he just pointed to things and flipped the pages for me to sign. 1075 Ms Raymond attaches a copy of the Loan Contract she signed to enable her to buy the Daewoo. The car was a Daewoo Lanos SE Hatchback 2000. It is a document headed "ANG Hulbert & Associates Pty Ltd. Trading as AHA New Start Finance". It is described as a "Loan Contract (with Bill of Sale)". The document is "Contract No RAYMOND 106/2009". Ms Raymond is described as the borrower. It is signed by Ms Raymond and bears the date 29/4/09. Page 1 also bears Mr Hulbert's signature and the same date. Ms Raymond signed the document on p 2 and on pp 3 and 4 which set out the terms and conditions. She also signed the document at p 5 as did Mr Hulbert. 1076 Although in a different format, p 5 contains a series of boxes and information under the heading "ACKNOWLEDGEMENT AND ACCEPTANCE OF OFFER" with a sub-heading "IMPORTANT – BEFORE YOU SIGN". The information is in substantially the same terms as set out at [311] of these reasons. Again, although the format of the essential information set out on p 1 is displayed in a different manner to that reflected in the other contracts in this case, the critical information concerns the same topics. 1077 The critical information is this: SCHEDULE AMOUNT OF CREDIT (without fees and stamp duty) $6,216.00 CREDIT FEES AND CHARGES RETAINED BY US THAT MAY BE PAYABLE ON OR BEFORE FUNDING $550.00 Establishment & Processing Fee CREDIT FEES AND CHARGES WE PAY TO OTHERS THAT ARE PAYABLE ON OR BEFORE FUNDING Office of State Revenue: - Credit Business Duty N/A - Mortgage Duty N/A - Registration Fee (under state motor vehicle securities legislation) $21.50 - Main Roads Search N/A - Extended Warranty $990.00 TOTAL AMOUNT OF CREDIT (including fees and stamp duty $7,777.50 TOTAL AMOUNT OF INTEREST CHARGES PAYABLE $2,799.90 TOTAL AMOUNT INCLUDING PRINCIPAL & FEES & INTEREST $10,577.40 ANNUAL INTEREST PERCENTAGE RATE 48% per ANNUM REPAYMENTS TO BE MADE TO THE LENDER • The amount of your repayment is: $280.44 (incl. of account keeping fee) • The amount of the last repayment is: $280.44 (incl. of account keeping fee) • The total number of repayments is: 39 • The period over which repayments are made: 14/5/2009 TO 28/10/2010 • The first payment is due on: 14/5/2009 • Repayments are to be made: FORTNIGHTLY … 1078 The loan disbursement details are set out in a table in the contract as follows: LOAN DISBURSEMENT DETAILS AMOUNT INSURER: SUNCORP METWAY $. CAR DEALER: SUPERCHEAP CAR SALES $6,216.00 ESTABLISHMENT & PROCESSING FEE* $550.00 OFFICE OF STATE REVENUE N/A REGISTRATION FEE: $21.50 MAIN ROADS SEARCH: N/A EXTENDED WARRANTY $990.00 TOTAL DISBURSEMENT $7,777.50 * Denotes that the fees and charges are payable to the Lender 1079 Ms Raymond exhibits to her affidavit a copy of a document entitled "Contract to Buy a Motor Vehicle". She signed that document. It is dated "29/4/2009". It recites the price of the vehicle as $6,000.00 and the total purchase price including fees and other items as $6,216.00. No amount is shown in the categories of additional costs for the item "Extended Warranty". No amount is shown as having been paid as a deposit. The total amount to be "financed" in the purchase is $6,216.00. 1080 Ms Raymond says that she recalls Colin telling her that there was a one month warranty for the car. She says he did not give her any other documents about any other warranty. She says she signed all the documents Colin asked her to sign and she paid him a deposit of $1,000.00. Ms Raymond says that she knew that the loan was "a very expensive loan". However, she felt as though she did not have any other choice as no other car yard would sell her a car. She says that one of her daughters drew her attention to the elements of the loan by telling her that she was "getting ripped off". Ms Raymond says that she simply needed the car "to get around, work and school and get [her children] around". 1081 Ms Raymond says that the Daewoo "had a lot of problems from the start". She says this at para 26: The air-conditioning ran out after a few weeks. The repair person told me it had a hole in it and it cost $1,100 to fix. It also needed new tyres, a new fan belt and a new radiator. Because of all the repairs, I called Colin in or about the middle of 2009 and told him I would have to miss some repayments. We had a conversation to the following effect: I said: "I won't be able to make a repayment this week because of all the repairs." Colin said: "Why don't you bring it to my mechanics so we can still get a payment from you." 1082 Ms Raymond says that at the end of 2009 she stopped working for a while. She went back to receiving Centrelink payments. She also started falling behind in making the car payments. She says she tried to contact Colin but spoke to another person whose name she can no longer recall. This other person told her something to the effect of: "You need to make this payment or we will come and take the car. I don't want to do that to you Leandrea". 1083 In 2011, the motor in the Daewoo "blew" and Ms Raymond could not afford to fix it. The car remained in the yard at her house for about a month. She was able to obtain a part for the vehicle and fix it. She says that she "started getting more letters about the missed repayments". The letters told her that the car would be repossessed due to the missed repayments. On 22 September 2011, the Daewoo was repossessed. The repayments owing at that time were $2,820.00. Ms Raymond received a letter dated 30 January 2011 from AHA Finance signed by Mr Hulbert advising that the Daewoo had been sold on 27 January 2012 for an amount of $750.00. The letter told her that the amount due and payable under the Credit Contract was $5,179.06 and that should Ms Raymond not make arrangements to repay that sum within seven days, Court proceedings would be commenced for recovery of it. 1084 In March 2011, Ms Raymond wanted to make a claim for an early release of her superannuation on the grounds of hardship. She asked Colin to give her a letter outlining her "repayment situation" concerning the Daewoo car. On 25 March 2011, Mr Hulbert for ANG Hulbert & Associates Pty Ltd signed a document advising that the amount advanced to Ms Raymond had been $7,227.50 and that the amount paid on the loan was $6,342.52. The letter says that the total amount "to payout" as at 25 March 2011 was $5,495.75. The letter attached a printout of a Loan Statement as between the lender and Ms Raymond. 1085 Ms Raymond says that in or about June 2012, she secured a job at "The Cash Store". She worked as a Customer Assistance Officer. She did not know a lot about the business except that the business operated as a money lender. The repayments on loans were "pretty high". Her duties involved answering telephones, filing, calling people to remind them to pay their debts and completing loan applications. After a few weeks of working at The Cash Store, Colin and another man Ms Raymond now knows as Wayne McKenzie walked into the shop where she was working. Ms Raymond describes the meeting with Colin in this way at para 35: Colin was looking at setting up his own short term lending business and he came into The Cash Store to see how things work. When Colin saw me we had a conversation to the following effect: Colin said: "Oh, you've got a job now". I said: "Ha ha. Yeah. Want to give me another car?" Colin said: "Well if you would like to come down to the car yard this afternoon, we can find something for you?" 1086 Ms Raymond needed a car for her new job to enable her to do the banking "and things". She thought she would go and see Colin although she "still felt ashamed that [she] had not made all the repayments on the Daewoo". At 6.00pm that evening, she went to Supercheap on Spence Street, Cairns with Tanya Daniels and her son. Ms Raymond picked out a Nissan vehicle that she liked. Colin told her she could not have that vehicle and added: I've got this old Hyundai in the back. I bought it for my daughter but she never drove it. It will take about a week to fix, you can come in next week and sign the papers and get everything happening. 1087 Ms Raymond says this about the car at para 39: The Hyundai was pretty untidy. It still had dog hairs on the seats. It was just sitting in the corner, not on display. There was a sign inside it saying it was not roadworthy. It did not have a price tag on it and I didn't ask or wasn't told the price. 1088 Ms Raymond says that when she was at the car yard she overheard a conversation between Colin and Tanya Daniels in which Colin asked her whether she thought that Leandrea would keep her job at The Cash Store. Ms Daniels said that she would keep her job but that she was "on three months' probation". Colin said: "All you will need to do is get a letter to confirm she works there". Ms Daniels told him that she could obtain such a letter although she would not be able to confirm Ms Raymond's exact wages until a fortnight had expired as she had only just started to work there and had not been paid. 1089 The following Friday, Ms Raymond went back to the Supercheap car yard and had a conversation with Wayne McKenzie who described himself as the new person doing the finance for the cars. He asked her whether she had brought with her a pay slip or letter from her employer. Wayne McKenzie gave Ms Raymond an application form to take home and fill out and asked her to bring it back the next day. She took the form home and filled it out that night and signed it. She completed the front section of the form with her personal and employment details. She also completed the section providing financial information of rent at $210.00 per week, food of $110.00 per week. She completed the "References" section of the form. 1090 On the following Monday, 25 June 2012, she returned to Supercheap. She met with Wayne McKenzie and gave him the completed Credit Application Form together with a Centrelink statement dated 17 June 2012, an ANZ Bank statement for the period 2 March 2012 to 4 June 2012, a letter of employment from The Cash Store dated 12 June 2012. Ms Raymond also gave Mr McKenzie a copy of her Tenancy Agreement for the period 27 April 2012 to 26 April 2013. 1091 As to the Credit Application Form, Ms Raymond says that when she gave that document to Mr McKenzie he did not ask her any questions about it or go through it with her. At the meeting, Mr McKenzie told her that he had worked out an agreement whereby Ms Raymond would repay $110.00 per fortnight. Ms Raymond said that was "okay". He told her that she should "take a seat and wait for Colin and do the rest of the paperwork". She says that the meeting with Mr McKenzie was "very quick, probably only 5 or 10 minutes". She says that she still had not been told the price of the car. 1092 As to the Credit Application Form, the information in the Financial Information box is as described by Ms Raymond. Four boxes are ticked in relation to supporting documents and they are: driver's licence, bank statement, Centrelink income statement and proof of residential address. The document is dated 22 June 2012. Page 1 recites that Ms Raymond is employed by "Cash Store Advance" and has an income of $673.75 per fortnight and her previous employer was Centrelink. Oddly, the gross income is shown as $519.00 per fortnight. The letter from The Cash Store dated 12 June 2012 says that Ms Raymond's ordinary hours of work would be 20 hours per week paid at an hourly rate of $16.58 which amounts to $663.20 per fortnight. The letter contemplates that there might be some overtime. 1093 Tab 11 to Ms Raymond's affidavit is a credit reference check obtained from Veda. Ms Raymond was not shown this document. 1094 Ms Raymond also exhibits to her affidavit a copy of a Preliminary Test document. She did not receive a copy of the document and it is not signed. However, it is in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 22/6/2012 Client Name: RAYMOND Leandrea Rose Income from The Cash Store is based on a minimum of 20 hrs p.w. resulting in $673.75 per F/nite. However applicant is assured her hours will increase and therefore her net pay will increase. This loan is based on applicant's minimum income situation. Loan Purpose: Motor Vehicle Purchase $5,990.00 Deposit $1,000.00 Loan Value $4990.00 Capacity: Borrower 1 income "net value" The Cash Store $1,459.79 20 hrs p.w. @ $16.58 = $1436.90 gross p.m. net p.f. $673.75 Family Tax Benefit $723.15 $333.76 p.f. Maintenance $0.00 "NET" total monthly income $2,182.94 Expenses $0.00 Rent/board monthly $910.00 $210 p.w. Food $476.67 $110 p.w. Net Disposable income $796.27 $0.00 35% of Disposable income equals $278.69 Mobile Phone $0.00 repayment this loan $238.34 $55 p.w. Surplus/Deficit per month $40.35 I confirm the information input in this assessment is accurate based on the information I have been provided. Broker Signature 1095 Ms Raymond says that this document does not capture all of her expenses. It seems to capture only those expenses she wrote on the Credit Application Form. Ms Raymond says that the Preliminary Test does not provide for these expenses: (a) My pre-paid mobile expenses which were about $60 per month at that time; (b) Centrelink deducted $20 per fortnight for electricity and the balance I had to pay was about $200 a quarter; (c) Clothes for me and Thomas [on] which we spent about $70 per month; (d) Cigarettes which were $60 per week; (e) Internet which was $30 pre-paid per month so Thomas could do his homework; (f) Any money that was outstanding in relation to the Daewoo. 1096 Ms Raymond waited for Colin. 1097 She sat down with him in his office. 1098 He had some paperwork in his hand "which was the contract for the Hyundai". Colin asked her how much she could afford to pay. He reminded her that she still had to pay off the other car. She said that she thought she could pay $200.00 a fortnight. She said that she could give Colin $150.00 for the Hyundai and $50.00 for the Daewoo. Colin agreed. She says that Colin said: "Okay. Well you know the paperwork from before. We don't have to go through this again with you". She says that Colin then handed her a contract document and asked her to sign it. 1099 She puts it this way at para 57: He flipped through the pages and pointed out where I had to initial and sign. Which I did. Unlike the pervious loan contracts Colin didn't point out any of the figures, like how much the loan was or interest repayments. I didn't even know how much the car was at this point. I didn't have an opportunity to read the contract while I was signing it. 1100 She says that she did see the interest rate of 48% and she recognised that "this was going to be a very expensive loan". Ms Raymond attaches to her contract a copy of a document entitled Continuing Credit Loan Contract and Mortgage No: 5261. Ms Raymond says that this is the loan contract that she signed on 25 June 2012. She says that on p 9 a line is drawn through Box A concerning an election to obtain legal advice and that this line was already drawn on the page when Colin gave the document to her to sign. She says that when she signed in Box B on p 9 Colin did not explain that part of the document and did not suggest to her that she could obtain legal advice. 1101 At para 61, she says this: Now that I have read the Hyundai loan contract it states that the repayments are $54 per week, which is roughly equivalent to the $110 per fortnight that I initially agreed with Wayne [at the outset]. I don't really know who Channic Pty Ltd is. I thought I was dealing with a company called AHA Finance. I do not understand how interest is calculated and how they come up with the total cost of the car. 1102 As to the Credit Contract, the relevant information is this: FINANCIAL TABLE Amount of credit of the loan $4,990.00 Annual percentage rate 48% per annum Total amount of interest payable $5,704.36 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 198 consisting of 197 repayments each of $54.09 Plus a Final Repayment of $38.63 Total amount of repayments $10,694.36 Date of first repayment 28/06/2012 Frequency of repayment Weekly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 25/06/2012 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1103 The Comparison Rate entry is in these terms: Comparison Rate 46.9295% per annum This rate is calculated on the $4,990.00 credit amount over a 198 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1104 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 25/06/2012 Loan Draw Down Date 25/06/2012 Loan term commencing from the Draw Down Date 198 weeks Amount of credit to be paid on the Drawdown Date as follows: $0.00 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Supercheap Car Sales for Car Purchase $4,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1105 The Credit Contract is initialled on each page. Ms Raymond has signed the contract at pp 8 and 9. 1106 Ms Raymond exhibits to her affidavit a letter dated 25 June 2010 signed by Mr Hulbert for AHA New Start Finance Trust addressed to her. She says that she received this letter on the same day she signed the Credit Contract. She recalls that matter due to the notations on the letter about the insurance arrangements. The letter attaches a repayment schedule and confirms an arrangement made with Ms Raymond on 25 June 2012 in respect of the balance owing on her Loan Contract of $4,990.00. The letter confirms an adjustment to "your standard repayment amount". Oddly, the repayment adjustment is from $150.00 to $150.00 and says that the repayment frequency has been changed from weekly to fortnightly. Under the Credit Contract, the repayment was $54.09 weekly. The adjustment recites a fortnightly payment of $150.00. The letter adds: "You should note that this arrangement has increased the number of scheduled payments required to pay out the loan, the total of which amounts to $7,560.54 at this point in time". 1107 Ms Raymond says that this repayment arrangement of $150.00 per fortnight is consistent with her recollection of having told Colin that she could pay him $150.00 per fortnight. Ms Raymond notes that the letter does not mention anything about the additional $50.00 that she told Colin she could afford to pay for the Daewoo. 1108 Ms Raymond says that she recalls Colin "dropping" at her work place at The Cash Store a letter dated 27 June 2012. She does not recall why he did so. The letter dated 27 June 2012 is signed by Mr Hulbert for AHA New Start Finance Trust and it bears the reference "Loan Contract No: 5261". It says that the letter and the repayment schedule attached to it confirm the arrangements made as at 27 June 2012 when the balance of Ms Raymond's loan contract was said to amount to $5,003.12. It says: "As agreed, we have adjusted your payment(s) and/or payment date(s) in accordance with your request". Again, it says that Ms Raymond should note that "… this arrangement has increased the number of scheduled payments required to pay out the loan, the total of which amounts to $7,792.81 at this point in time". The schedule commences with a fortnightly repayment due on 28 June 2012 and concludes with a repayment on 29 May 2014. 1109 Ms Raymond says that on the following Friday, 29 June 2012, she went back to the car yard to collect the car. 1110 She says this about the car at para 70: I took the Hyundai from the Super Cheap car yard on the following Friday and by Monday it had broken down. I rung [sic] Colin immediately and he sent someone out to collect it. They kept it for 2 days. The second time I took it from the car yard it broke down when I reached the traffic lights, they had to come back and tow it and this time they kept it for a week. It had problems starting and they had to replace the whole ignition. A mechanic who worked at Super Cheap – I can no longer remember his name – told me I should never have bought the car because there was so much work to be done on it. 1111 As to her circumstances, Ms Raymond says that she left her job at The Cash Store after two and a half months because of a recurring back injury. She says she "went back onto Centrelink payments after that". She called Supercheap to let them know that she would start to fall behind in her payments. She spoke to Wayne and had a conversation in which Wayne said that Colin was in Papua New Guinea. Wayne said that he did not want to know anything about late repayments as that was "Colin's business". Ms Raymond says that she tried to make some repayments on the Hyundai and Daewoo as best she could. She stopped making any payments on the Daewoo. She says that sometimes she would pay $100.00 or $120.00 when she could in respect of the Hyundai. She says she was making repayments up until about October 2012 but then she started to receive "missed payment letters". She then decided to go and see the Salvation Army for some financial counselling. Mr Dennis Higginson was assigned to assist her. She says that a number of times a man called Paul came to her house to ask her to make payments on the loan. She says that Mr Higginson tried to make a number of offers to Colin to sort out her repayments. She offered to make a $50.00 repayment every fortnight as she was out of work. Colin would not accept that offer. Ms Raymond says that she and Mr Higginson decided that the best thing for her to do was to give the car back. In February 2013, she spoke to Colin on the telephone. Colin told her to leave the car outside the front of her house with the keys in the ashtray. On 5 February 2013, a person came and collected the car. She says she has not received any notification from Colin or the finance company about what has happened to the car or how much it was sold for. She has not received any statements so she does not know how much is or was outstanding. 1112 She says that about a month and a half after the car was repossessed, she went to "Cash Stop" on Mulgrave Road to take out a loan because she was "going to be kicked out of [her] place soon and [she] needed money to pay [her] rent". She was told, at Cash Stop, that she owed Channic Finance about $7,000.00. She was refused a loan by Cash Stop. 1113 Ms Raymond sums up her situation as at 18 June 2014 in this way at para 80: Defaulting on the loan for the Hyundai has had a big impact on my life and was part of a downward spiral to depression for me. I fell further behind in my financial situation and was very depressed that I wasn't able to pay off my loans. I got even more depressed when I found out that I had a $7,000 bad credit listing from Channic Finance. I felt I would never be able to get ahead financially. I haven't worked since I left The Cash Store. I was in an abusive relationship with my partner, not violence, but sexually. I was having a lot of trouble communicating with my eldest children. In December 2013 I had a breakdown, which my doctor called psychotic depression. I also attempted suicide on 23 December 2013. I am currently taking medication for my depression called Sertraline 100mg which I take 2 tablets a day. I was also taking Apo-Olanzapine 10mg before bed to help me sleep otherwise I wake up all through the night, but now I get a needle injection for that every fortnight. I am currently seeing Dr Miller at the Queensland Health South Side who is my psychiatrist. Shauna McCollouch is my case manager. 1114 One of the documents Ms Raymond handed to Wayne McKenzie was a Centrelink statement dated 17 June 2012. 1115 That letter sets out the following information: Item Deduction Amount Payment from 05/06/2012 to 18/06/2012 due on 20/06/2012 $1,127.92 Payment from 19/06/2012 to 02/07/2012 due on 04/07/2012 $331.48 Regular payments from payment date 18/07/2012 Family Tax Benefit Part A $213.92 Plus Family Tax Benefit Part B $100.66 Less QLD Government Other Housing Payment $20.00 Less Lump Sum Advance Repayment $46.06 Less Educational Fees $30.00 Less Electricity $20.00 $135.24 Plus Rent Assistance Total $116.06 $449.82 Net Amount $333.76 1116 Ms Raymond also gave Wayne McKenzie a copy of her bank statement as earlier described. That statement shows regular payments to her account. The payments for the month of April 2012, for example, were these: Date in 2010 Transaction Amount 3 April Centrelink Newstart $332.10 11 April Aus Gov Families $97.58 11 April Aus Gov Families $179.56 17 April Centrelink Newstart $332.10 24 April Aus Gov Families $97.58 24 April Aus Gov Families $179.56 30 April Tax Refund Centre $255.87 PART 18: THE PRECISION IN THE EVIDENCE AND THE CONDUCT OF THE PROCEEDINGS 1117 At directions hearings and case management conferences, orders were made for the conduct of the trial by affidavit supplemented by oral evidence expanding, where relevant, upon those matters expressly dealt with in the affidavit material. The orders contemplated that ASIC would put on its affidavit material from the various Yarrabah consumers by a certain date and the respondents would put on their affidavit material by a later date with an opportunity available to ASIC to file reply affidavit material by a further date. The affidavit and oral evidence, of course, provided the evidential foundation to support the questions in controversy framed by the complex pleadings in the proceeding. 1118 I have examined closely the affidavit and oral evidence of each of the Yarrabah consumers leaving aside for the moment the particular questions which arose in relation to the affidavit evidence concerning the transactions with Mr Gordon and Ms Stanley and also Ms Raymond and aspects of the questions Dr Spence sought to ask Mr Hulbert concerning these transactions, which will be addressed later in these reasons. I have done so because each of the consumers put on an affidavit which sought to engage in some detail with the chronological sequence of events and documents as described. They were taken to these events in evidence-in-chief by counsel for ASIC and each witness was cross-examined very extensively by Dr Spence about the events and the documents. In the course of cross-examining the witnesses, Dr Spence put to each of them the general propositions arising out of the affidavit of Mr Hulbert. One of the difficulties, however, is that the affidavit of Mr Hulbert affirmed on 3 October 2014 does not directly engage with the affidavit material of each of the Yarrabah consumers. Rather than address each of the transactions, documents and events in detail, Mr Hulbert responds by describing matters of method, approach, practice and behaviours in the conduct of the undertakings of the relevant entities. Mr Hulbert briefly mentions some particular matters but has elected to address the very detailed contentions of the Yarrabah consumers at a high level of abstraction from the particular detail. The Court is invited, in effect, to conclude that by deploying these methods, approaches, practices and behaviours, the respondent entities and Mr Hulbert did not engage in the particular conduct about which each individual consumer complains in the affidavit evidence. That being so, Mr Hulbert's evidence does not engage with each contention of each Yarrabah consumer, specifically. The proposition, fundamentally, is that because the respondents acted in the way described by reference to the methods, approaches, practices and behaviours generally, they therefore did so specifically in relation to each particular consumer. 1119 It is now necessary to examine the evidence of Mr Hulbert. PART 19: THE EVIDENCE OF MR COLIN HULBERT 1120 As already mentioned based on the pleadings, Mr Hulbert was the sole shareholder, sole director and controlling mind of Channic and the duly authorised agent of that entity. He was the sole director of and a shareholder in CBPL (Cash Brokers Pty Ltd). He was the controlling mind of that company and its duly authorised agent. In cross-examination, Mr Hulbert accepted that a company called Ang Hulbert Pty Ltd ("AHPL") was the company that, at one point in time prior to the transactions with the consumers in these proceedings, sold cars and provided finance. Mr Hulbert accepted that that company had been charged with a number of offences under the Queensland Consumer Credit Code: T, p 947, lns 1-9. 1121 Subsequently, two new entities were established and three companies became engaged in activities related to selling cars, providing brokerage and providing finance. They were AHPL, Channic and CBPL. Mr Hulbert said that he had created a brokerage company (CBPL) because he intended to provide brokerage for loans more widely than in connection with finance for the sale of cars: T, p 947, lns 27-36. As to these three entities, Mr Hulbert accepted that he was the controlling mind of each of them; there were no other directors; no employed managers; and he was the only one who controlled them: T, p 951, lns 12-21; T, p 947, lns 35-36. 1122 Throughout Mr Hulbert's affidavit, he describes matters by reference to the period between 13 July 2010 and 25 June 2012. That period reflects the period of the transactions with the Yarrabah consumers in issue in these proceedings: see [73] of these reasons. He says that during this period, there were a total of 17 contracts between Channic and the residents of the Yarrabah community. The total number of borrowers who entered into loan contracts with Channic so as to purchase a motor vehicle, during the period, was 196 consumers: paras 2 and 3 of the affidavit. In oral evidence, Mr Hulbert said that Yarrabah consumers were something like 12% of the total or 20 in number: T, p 880, lns 16-21. 1123 As to the physical premises where events occurred and an explanation was given to borrowers, of the loan contract, Mr Hulbert says this. Between June 2010 and September 2011, he executed a number of loan contracts with buyers of vehicles at the business premises of Channic at 484 Mulgrave Road, Earlville. These premises were a small ex-service station with an open plan office area of approximately seven metres by five metres. Mr Hulbert says he conducted conversations with customers in the open plan office where the desks of other personnel using the office were about three metres from his desk. 1124 Mr Hulbert says that in the period April 2011 to June 2012, he executed a number of loan contracts with buyers of vehicles at Channic's premises at 132 Spence Street, Cairns. At those premises, Mr Hulbert says he generally conducted conversations with applicants for car loans at his desk in the open plan area at the front of the business premises and about four and five metres away from the desks of two staff members. Very occasionally he conducted conversations with customers, at those premises, in an office where his desk was approximately six metres from two staff members' desks. He says he had a policy of never closing the door so that his behaviour and the behaviour of customers could be observed. 1125 As to the conversations he held with applicants for loans for the purchase of cars, he says this at paras 25 to 28: 25. … my conversations with applicants for car-loans applicants [sic] were very similar for all customers, and these conversations generally lasted for about an hour or sometimes longer. 26. I always explained the terms of the loan contracts. 27. The copy of the loan contract was handed to the borrower before or as soon as each borrower sat down, prior to my explaining the contract. 28. I always provided a copy of a loan contract to an applicant. [emphasis added] 1126 Mr Hulbert expanded upon those matters at paras 34 to 42 in these terms: 34. I would draw each applicant's attention to most of the terms contained on pages 1 to 7 of the loan contracts. 35. I always asked applicants if they understood the terms of the contract listed on pages 1 to 7 of the contract, and [asked] if they had any questions about those terms. 36. I would refer the applicants to page 8 of the contract and tell them that they could take the contract away if they wished to seek legal advice about the contract. 37. I always told the customers they could take the loan contract away and seek legal advice. 38. I would always advise applicants that they should read all the terms of the loan contract. 39. I would explain that the loan contract was a legal document. 40. I would explain to applicants the nature of the direct debit service agreement and the direct debt authority. 41. It was my practice when referring to pages 1 and 2 of the loan contract to also advise the borrower that the total amount to be repaid included disbursements, in particular the amount of brokerage as itemised in the contract. 42. As to whether or not Mr Kevin Humphreys, as credit representative for Cash Brokers, enquired from the customer if the loan being applied for was to also cover the brokerage fee, I say that this amount was always included on the contract in the disbursements of loan funds section, that I always mentioned the brokerage fee when explaining this part of the contract with all borrowers and that they did not object, or ever indicate that they were not aware of the brokerage fee. [emphasis added] 1127 As to applicants who were residents of the Yarrabah Aboriginal Community, Mr Hulbert also says this at paras 6 to 14 of his affidavit as to his approach generally: 6. When explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic in the period between 13 July 2010 and 25 June 2012, I did not experience any difficulties understanding the English spoken by the loan applicants. 7. When explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic in the period between 13 July 2010 and 25 June 2012, I did not observe any signs which caused me to suspect that those borrowers had any impairment that might affect their ability to comprehend the terms and conditions of the loan contracts and associated documents. 8. When conversing with the customers from Yarrabah in respect of the seventeen loan contracts with Channic concerning the purchase of motor vehicles between 13 July 2010 and 25 June 2012, I spoke to them in simple plain English, as with all customers. 9. When explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic in the period between 13 July 2010 and 25 June 2012, I always make it a practice to ask each borrower, on a number of occasions, whether or not they required any further explanation of various terms of the proposed contracts, and I have no recollection of any such request having been made. 10. When explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic in the period between 13 July 2010 and 25 June 2012, I did not observe any behaviour on their part to indicate that they were commercially naïve, and each of those borrowers involved in the loans the subject of the proceedings herein gave a detailed account of their income. 11. When explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic in the period between 13 July 2010 and 25 June 2012, I always gave the applicants the opportunity to read the loan contracts. 12. When explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic in the period between 13 July 2010 and 25 June 2012, I always advised the applicants that they were entitled to seek legal advice, and I have no recollection of any such request having been made. 13. At about the time of explaining the loan contracts to the residents of Yarrabah who entered loan contracts with Channic, in the period between 13 July 2010 and 25 June 2012, they told me their reasons for entering the loan contract and they had an opportunity to say how much they thought they could meet in periodic repayments, whether or not the total amount they wished to borrow was suitable to them, whether or not the final repayment date was suitable to them having regard to each person's financial circumstances, and they had an opportunity to tell me if my offer, in regards to those areas, was unsatisfactory to them. 14. In respect of the requirements of most of the applicants who resided in Yarrabah and entered loan contracts with Channic for the purchasing of motor vehicles in the period between 13 July 2010 and 25 June 2012, many of them told me that they wished to purchase a motor vehicle to obtain means of transport to facilitate shopping for basic necessities in Edmonton, Gordonvale or Cairns, or wished to acquire a vehicle for transport to work, or for uses such as to go fishing, attend sporting events, attend medical treatment, or to transport family and/or friends for various other purposes. [emphasis added] 1128 In his affidavit, Mr Hulbert describes aspects of the activities of CBPL, the steps taken by Mr Humphreys on behalf of that company as the credit assistance provider and aspects of Channic's approach. At paras 151 to 153 and paras 155 to 164, Mr Hulbert puts it this way: 151. When Mr Humphreys, acting in his role as representative for Cash Brokers, who were credit assistance providers (brokers), approached me in my role as a credit representative for Channic, he presented information verbally and/or in writing that provided the basis for me to proceed to undertake an assessment as to the applicant not being unsuitable to be provided with a loan. 152. I say that in total, the information collected by Mr Humphreys and given to me and any information I collected, generally being bank statements, Veda credit checks and documents concerning income, plus verbal, and later, documented purchase information concerning the preferred car the loan was required for, was directly related to the customer's financial situation, requirements and objectives. 153. Depending on the particular applicant, the information referred to [concerning the Yeatmans, Prunella Harris, Gordon and Stanley and the Nobles] included copies of Centrelink Income Statements, correspondence indicating other sources of income and an Application Form in which Mr Humphreys had written information concerning the applicant's financial circumstances. … 155. I say that, at the time of the assessment, given the nature of the documentation and the opportunity to personally assess the borrower and their various statements, including their comments as to why they wanted to borrow money to purchase the car that they had selected and how it would benefit them, I had every reason to believe that the information, however provided, was true. 156. On my instruction, if the loan applicant did not bring documentation with them, Mr Humphreys would tell the applicant to obtain bank statements and evidence of income, such as Centrelink Income Statements, as applicable. 157. I say that the Preliminary Assessment [see, as an example, [369] of these reasons] implied a decision by Mr Humphreys in regard to a particular applicant being not unsuitable, because it was presented to me together with a letter [see, as an example, [366] of these reasons] requesting my consideration of the application for a loan. 158. I say that I cannot recall Mr Humphreys routinely presenting credit assistance applications to me that he had rejected as unsuitable. 159. Approximately 20% of the loan applicants introduced to me by Mr Humphreys were ultimately assessed as not suitable, and I rejected their applications. 160. I am aware that Mr Humphreys also rejected applications, but cannot recall what percentage. 161. When introducing a loan applicant to me, Mr Humphreys always indicated the amount of the loan required, with the arrangement that I would explain to an applicant the interest rate under each loan contract, which was the maximum permitted by the Credit Act, and the loan term, which depended on the final assessment of affordability. 162. Following the introduction of a loan applicant by Mr Humphreys, I say I always told an applicant the loan amount, the interest rate, the term of the loan and whether or not it included the credit assistance (brokerage) fee, before the applicant signed the credit contract and mortgage document. 163. When a previous borrower sought a loan, I would refer to information Channic already had on file and ensure that it was currently applicable, to assist in my assessment for the new loan from Channic. 164. Any preliminary assessment of a loan application undertaken by Mr Humphreys was not automatically accepted as a final assessment and, as the representative of the credit provider company, I undertook a final assessment as to whether or not the applicant was unsuitable. [emphasis added] 1129 As to the role of CBPL, Mr Hulbert says in oral evidence that he received written and oral information from Mr Humphreys. Mr Hulbert thinks he received Centrelink income statements for the consumers relevant to these proceedings although he "can't really remember": T, p 907, lns 40-42. Mr Hulbert says that CBPL provided Channic with an application letter stating the name of the applicant and the amount sought. It attached documents. As to whether CBPL gave Channic advice about approving the application, Mr Hulbert said that he "would have to check the document": T, p 908, lns 7-8. Channic did not receive notice of CBPL refusing to refer loan applications to it. Mr Hulbert says that once applications reached him, "not a very high percentage" was refused: T, p 908, lns 14-17. 1130 As already mentioned, much of the affidavit evidence of Mr Hulbert sets out the method, approach, practice and behaviours adopted generally by Channic, CBPL and Mr Hulbert towards consumers seeking a loan for the purchase of a motor vehicle. Mr Hulbert does not expressly engage with each consumer transaction in issue. The Court asked this question of Mr Hulbert at T, p 919, lns 40-43: Q: … can you just explain to me what do you say was the method you applied in the case of these consumers in this case in relation to the loan contract? Just explain to me what you say you said to these people? A: You want the full spiel? Q: You tell me what you said to them? [emphasis added] 1131 In that context, Dr Spence handed Mr Hulbert the Consumer Loan Contract and Mortgage relating to Ms Kingsburra so as to illustrate his approach. Mr Hulbert gave this evidence at T, p 920, ln 20 concluding at ln 42 on p 923. Before Mr Hulbert discussed the loan contract, he discussed the "car purchase documents" with the consumers consisting of the PAMD Act documents (the cooling off period, statutory warranty and other related forms including the invoice for the car). Mr Hulbert says that these documents had been discussed with and explained to the customer before turning to the loan contract. He says that in most cases the discussion occurred in an open office. He would sit at a desk. The customer would usually sit opposite him. Mr Hulbert would produce two sets of documents. One set was for the client and the other was used by Channic. Mr Hulbert gave this explanation (although he also explained that the explanation given to the consumer would take longer than the following statement) (T, p 921, lns 16 and following): And we would say to the client, "This is your consumer loan contract for the purpose of you borrowing money to purchase this motor vehicle. Now, you can take your time, take this document, and you can sit over there and read it, or take it away and seek legal advice – legal advice about it if you want to". So, I can say that most people – I can't remember anyone taking a document away to seek legal advice. Some people would take the time to read a few pages. I don't think I had anyone sit there and read it from one end to the other. So they were given an opportunity to read it, and I said, "Do you want me to explain this document to you?" and they would have a document while they were sitting there, and I would have a document while I'm sitting here. So I would say, "This is the name" – and I would point … "So this [is] Channic Proprietary Limited. This is AHA New Start Finance … They're the licensed lender, and on here you've got your name and address, Adele. Okay? Now, with this document here, this is the amount of money you're borrowing" and I would point over and – because I've got the amount here – $8,301.50. Okay? This is the annual percentage rate you're paying, 48 per cent per annum. This is the total amount of interest payable, $4,813". At the same time I'm picking up the figures here, and then pointing to them at the same time … While they've got the document [I would say] "Interest free period", "The total number of repayments you've got, 110". That's the way we would go down. "Consisting of 109 payments of $119.45, with your final payment of $114.30. Now, the total amount of repayments is – the amount of money you've got to repay is $13,134.35. The date of your first repayment will be 19 July 2010. The frequency you're paying is weekly". Sometimes they would change after that from weekly to fortnightly – whatever suited them … and then we'd go down to the bottom and – talk about the comparison rate – we wouldn't go into too much about that. I would say this is a figure that is generated by software because it's very hard to explain that. Bear in mind, what we do is we go through this document, through all the sections first and then – well, we will go through it first, right. At this stage I haven't got them to sign anything. And then we go onto the second page. I said this is the breakdown of the amount of the borrowings, [a registration fee]. [I said that this is the] brokerage fee … payable to Cash Brokers Proprietary Limited. "Kevin would have discussed this with you at the time you're doing the application. This is a one off fee attached." Then … Supercheap Car Sales … $7,290 … 1132 Mr Hulbert says that he pointed out the encumbrance fee and the direct debit fee which would be charged to the customer's account in addition to the repayment of $119.45 (in the Kingsburra case). Mr Hulbert accepted that he had listened to the evidence of the consumers given in Court. In light of his explanation, the Court asked Mr Hulbert this: "Why is it, do you think, that they have such a different view of what you said to them to the view you have just told me?" Mr Hulbert took the view that ASIC "has put this whole thing to them". Mr Hulbert added this at T, p 923, lns 16-20: I think they're remembering the fact of when – after I had explained things, then they got into this mode of initialling and signing. It wasn't a matter of me explaining and then initialling, they – after we had been through the whole document and I asked them if they needed any further explanation; did they understand? Of course they all say, "I understand". … And from these customers here, because you listened to a lot of them, a lot of them said "He did say things", blah, blah, blah, "but I wasn't really listening". "He did murmur, but I don't know what he was saying". … a lot of them said that they didn't even see the car purchase contracts right. [emphasis added] 1133 Mr Hulbert elaborated upon his description of the things he mentioned to the consumers in this way at T, p 928, lns 35-44 and p 929, lns 1-25. He said this: We went through the details of the different charges for missing payments and everything like that. We went through their – they had a full schedule of their payments from when they started to when they finished [Mr Hulbert would take them to the schedule]. You couldn't miss it. It was the next page. … [Mr Hulbert would say] "the company is taking a mortgage interest in your car … registered on the registry … [an] interest until you pay for the car". There was another section about the financial health warning to the customer. "Look, these are legal documents" and etc etc. Then the most important one there, we come to this legal advice … "these documents, you can take them away. You can seek legal advice, if you want to". "If you're happy these documents are legal we can cross this section out, you sign here and proceed and go on. But if you want to take the documents away, you can. But you can't take the vehicle till we've completed the documents". Then I think we might have moved on to another section, which was the terms and conditions of the loan, which might have been eight pages. We didn't go into detail about that. I would say, "This is the terms and conditions of the loan, all the legal jargon. You can read all of that" … I think we moved down to another section. I said – which is important. "This is your information statement regarding commonly asked questions and answers about a loan – they always say, "What happens if I want to make more repayments?" – "What happens if I want to pay it out early?" I said "You pay it out early. It's no problem. No penalty fee". And at the bottom of that [section] I think there was the part about the Financial Ombudsman Service, if you wanted an external dispute resolution. … And then there was another section there about insurance on their motor vehicle and then the direct debit request. Most of them signed a direct debit request for the money to be deducted from their bank account. 1134 Mr Hulbert was asked at T, p 929, ln 27: "And you would take them to the schedule of payments?" He answered at T, p 929, lns 27-30: Sure. Most of them really appreciate it. They say, "That's good. You know, I've got a record, here," because some people have been used to having a book or something. But they all appreciated the fact that they could see when the loans start and when it finished. 1135 Mr Hulbert explains in his affidavit that he had been supplied with a document described as a "Credit Application Form" by Ladbroke Financial Services. The example of that form exhibited to his affidavit is the Credit Application Form relating to the application by Ms Brim. This is the form used in respect of each of the consumers in issue in these proceedings. Mr Hulbert says at para 50 of his affidavit that this template form is "used with all my customers". In his affidavit, Mr Hulbert also explains the nature of the enquiries and verification steps which were undertaken concerning the requirements and objectives of each borrower seeking a loan contract from Channic. Again, Mr Hulbert puts these matters in general terms, descriptive of the approach at large. At paras 66 and following, Mr Hulbert says this: 66. During the period 13 July 2010 and 25 June 2012, in respect of enquiries and verification concerning each of the borrower's requirements and objectives, the subject of these court proceedings, from the start of relevant communications with each borrower, the borrower told me that they wanted to acquire a loan to pay the balance of the purchase price on a motor vehicle, in addition to paying a deposit in cash, with money they already had. 67. In respect of enquiries and verification of the borrower's requirements and objectives, this was further evidenced to me by the availability of vehicle sales documentation, listing of the vehicle in the mortgage detail section of the pro forma "Consumer Loan Contract (credit contract) and Mortgage", where full descriptive details of the vehicle were included, including year, make, model and registration number. 68. [As an example of the credit contract, Mr Hulbert exhibits to his affidavit a copy of the credit contract entered into with Ms Prunella Harris]. 69. Information was also included in the Credit Application Form … 70. The Credit Application Form provided for opportunities to indicate the purpose or requirements and objectives of the loan, with generally the "vehicle retail price" being used to indicate that the loan was for a vehicle in either a "Loan Purpose" section, or the "Deal Basic (Office Use)" section of the Credit Application Form. 71. I say that in respect of the pro forma Credit Application forms used by Channic in the period 13 July 2010 and 25 June 2012, these Credit Application forms were only used for loan applications to purchase vehicles … 72. In addition to anything included on the documentation referred to in paragraphs 67, 70 and 71 above, the applicants frequently explained the benefit expected to be obtained from borrowing the loan, so that they could buy the car for the purpose for which it was intended. 73. The benefits referred to in paragraph 72 above, included family transport to Cairns, towing boats for fishing, picking up relatives, medical treatment, transport to work, gift for son and similar, but these were not recorded on documentation because, during the period 13 July 2010 and 25 June 2012, there were no specified requirements to record the purpose or benefit intended. Only the basic requirement or objective was expected to be noted and I considered that listing that the loan was for the purpose of a car was adequate … [emphasis added] 1136 As to those matters at [1135], see also T, p 927, lns 15-43. 1137 As to enquiries concerning the financial circumstances of applicants for loans, Mr Hulbert says this at para 75 and following of his affidavit: 75. In the period 13 July 2010 to 25 June 2012 and since, it has always been my practice that all enquiries concerning the customer's financial situation were concluded before the loan was approved, including the obtaining of bank statements, Centrelink Income Statements where relevant, and any available documentation concerning other loan obligations. 76. In respect of obtaining bank statements, these bank statements were obtained for periods of at least two months, and generally three months. … 78. In the period 13 July 2010 and 25 June 2012, in respect of financial information collected from a loan applicant, in addition to the bank statements that showed the patterns of income receipt and expenditure, the "Credit Application Form" required the Channic representative to ask for employment and other financial information, to supplement the standard measurement of expenditure I used for general living expenses, referred to as "Standardised Expenses". 79. I say that, in the period 13 July 2010 and 25 June 2012, in respect of verification of the customer's requirements and objectives, this verification occurred as a result of the collection of information from the loan applicant, as referred to in paragraphs 66 to 77 above, and when the disbursement of the loan amount was being calculated and included during the drafting of the Consumer Loan Contract and Mortgage. 80. The calculation of the loan amount was included in each customer's loan contract and mortgage document on page 2 under the heading, "Amount of credit to be paid on the Drawdown Date as follows", and at point 3, "to Supercheap Car Sales for Car Purchase" … 81. In the period 13 July 2010 and 25 June 2012, in respect of verification of the customer's financial situation, I relied primarily on my analysis of the contents of the bank statements, as this was the most reliable and consistent information available [to] me showing patterns of income and expenditure. 82. At the time of the assessment I made a value judgement as to the customer's likely circumstances over the loan term and, when considering loan applications, I say that I always declined these where, at the time of the assessment, it was apparent to me that the borrower would have been unable to comply with their financial obligations under the customer's loan contract and mortgage document or could not have complied without substantial hardship. [emphasis added] 1138 As to the enquiries made by Channic of the financial circumstances of each consumer in these proceedings, Mr Hulbert, in oral evidence, affirmed para 75 of his affidavit and added this at T, p 905, lns 33-37: We would request bank statements, Centrelink income statements, or if they weren't on Centrelink, we would request proof of wage slips, etc. Or we would check in other ways and any other available documentation concerning their loan obligations. [emphasis added] 1139 At para 78 of his affidavit, Mr Hulbert refers to the Standardised Expenses model he used in determining an applicant's "general living expenses", in addition to other information there described. Mr Hulbert says that he made enquiries of Ms Pye, the manager of United Financial Services, in Cairns (which he describes as a "fairly large brokerage-type company"). Mr Hulbert says that Ms Pye introduced him "to the [Standardised Expenses] format they used for their loans which was the one that I adopted": T, p 906, lns 4-7. In a number of cases concerning the consumers relevant to these proceedings, the use of the Standardised Expenses format appears in the CBPL Preliminary Assessment. As to the "primary source" material relied upon by Channic for verification of the consumer's financial circumstances, Mr Hulbert gave this oral evidence at T, p 906, lns 29-33: We rely on the income statement or the wages. We relied on bank statements or – there's some other documents that may have been required as well. 1140 Mr Hulbert gave evidence that Channic declined some applications on the basis of his "personal decisions" based on his assessment of "income issues" or "something in the Veda report" or other things. As to the evidence of Mr Humphreys to the effect that if an applicant's income exceeded expenses, CBPL would recommend the application to Channic, Mr Hulbert accepted that "in most occasions", in such circumstances, Channic would make the loan and if expenses exceeded income, the loan "most likely would not be approved by Channic": T, p 907, lns 1-12. Mr Hulbert gave evidence that there "would have been a buffer", an amount by which income was to exceed expenses, in considering a loan application, although "[n]ot a specific figure, no": T, p 907, lns 14-18. 1141 Mr Humphreys received remuneration by way of commission only, at the rate of $300.00 for each car sold. Later in time, the commission amount increased. Mr Humphreys may therefore have had an incentive to reflect what he described as a positive position where income exceeded expenses recognising that in most such cases Channic would approve the loan application, thus effecting the sale and his right to commission. The Court thus asked Mr Hulbert this question at T, p 908, lns 43-46: "… did you have any protocol in place for checking the expenses yourself to be satisfied that the income truly exceeded the expenses? … Did you rely on Mr Humphreys in that regard …?" Mr Hulbert said that there was "some checking" due to the use of the Standardised Expenses formula. However, a "lot of expenses" were not taken into account because "the standardised formula was used": T, p 908, lns 46-47; T, p 909, lns 1-14. Mr Hulbert also says that now that he has had the affidavits of the consumers (in this case) setting out their expenses (although not all of the expenses were included in his initial calculation), he can recalculate the income and expenses and doing so reveals that there is "quite significant more buffer" than he initially allowed. 1142 Mr Hulbert accepts that at the time of the suitability assessment of the loans made to consumers in these proceedings, he was "putting a lot of emphasis on the standardised formula approach": T, p 909, lns 18-19. 1143 Mr Hulbert says that he "thinks" other things went into the assessment apart from resort to the standardised formula, such as, rent and financial loans: T, p 910, lns 16-23. Mr Hulbert gave evidence that his approach was (so far as it relates to the consumers in these proceedings) that if a consumer's existing financial loan commitments plus rent plus the use of the formula demonstrated that expenses were less than income, the loan application "was still approved": T, p 910, lns 33-35. That evidence seems to be consistent with the evidence of Mr Humphreys that if the CBPL assessment of income and expenses was positive, the loan application would be put to Channic for approval. Mr Hulbert says that most of those applications were approved. Mr Hulbert says that as to existing loans taken out by any of the consumers in these proceedings: "we would try to get them to get us a statement of their loan": T, p 911, lns 4-9. 1144 Mr Hulbert also says (T, p 912, ln 24) that he personally looked at the ASIC website during the period Channic was making its credit licence application to identify things relevant to the application: T, p 912, lns 26-30. Mr Hulbert cannot recall when he went to the ASIC website. However, he recalls a reference to the Henderson Poverty Index: T, p 912, lns 32-36. He says he was also seeking "guidance on what was required for doing these assessments": T, p 913, lns 1-2. 1145 Mr Hulbert was led by Dr Spence to paras 209.66 and 209.28 of an ASIC Regulatory Guide No. 209 entitled "Credit Licensing Responsible Lending Conduct" dated March 2011. Parts of those paragraphs were read to Mr Hulbert. Paragraph 209.66 says that benchmarks can be useful tools in a process of determining whether a particular consumer will experience substantial hardship as a result of meeting the obligations of a credit contract. It also suggests that such benchmarks might assess whether a consumer's disposable income is below an amount based on a particular objective indicator "(eg, the Henderson Poverty Index plus a certain margin)". Paragraph 209.28 addresses, depending on the circumstances, some aspects of reasonable enquiries about a consumer's requirements and objectives including, non-exhaustively, the timeframe for the loan, its purpose, the benefits, and features of the loan. Mr Hulbert was then asked by Dr Spence whether he had seen these things in his search of the ASIC website. Mr Hulbert gave evidence that he read about "it" (which seems to be a reference to para 209.66 and the remarks about the Henderson Poverty Index), although he did not see these references in 2010. Mr Hulbert says that he was looking at the website "generally" ("a number of times": T, p 916, lns 19-21) and he saw these references "at some particular time" (T, p 916, lns 16-17) although he cannot remember when. It may have been in 2011 or 2012: T, p 916, lns 28-29. Mr Hulbert says that he adopted the Standardised Expenses Model in early July 2010. He says that one thing that informed his mind was a statement made to him by the manager of United Financial Services that that organisation had looked at the Henderson Poverty Index and had developed the Standardised Expenses system or model: T, p 917, lns 1-16. 1146 Mr Hulbert also says that in making his assessment of the suitability of the loan for a consumer he took into account the brokerage expense payable to CBPL: T, p 919, lns 16-27. 1147 As to enquiries of an applicant in relation to the interest rate, loan amount and term, Mr Hulbert says this at paras 83 and 84: 83. I say that Cash Brokers did enquire about the amount of loan required, by identifying the car that the applicant was interested in purchasing and its price, and discussing with the applicant the need for a particular amount of deposit with the result that, when I mentioned the loan amount during my meeting with and assessment of the credit application, no applicant disagreed with the loan amount I specified when describing and explaining the credit contract. 84. I say I was never advised that there was a specific requirement in the NCCP Act or NCCP Regulations for either Mr Kevin Humphreys or myself to enquire as to the interest rate the applicant had in mind if any. [emphasis added] 1148 Mr Hulbert says that he was informed by a number of considerations (both in relation to the aspects of the lending conduct of Channic described at [1145] of these reasons and the conduct of CBPL) and they were these. 1149 First, in Mr Hulbert's own experience as a provider of consumer credit, potential borrowers did not propose (or offer) to the credit provider or the broker possible preferred terms as to the rate of interest or the period of the loan he or she had in mind. Rather, the credit provider would determine those things in all the circumstances: loan funds available, assessment of the customer and other factors. 1150 Second, as to whether Channic or CBPL was required to, or ought to, make enquiries of the borrower about that person's preferred interest rate or loan period, Mr Hulbert was informed by his understanding (whether correct or not) of consumer credit compliance requirements contained in a document published by the Financiers Association of Australia, dated 14 November 2010 (which, he says, remained unchanged to, relevantly, July 2012), which did not "specify" that enquiries of the borrower about the term of the loan or the interest rate were "mandatory or even mention them". Therefore, Mr Hulbert, "did not give any thought to including them on the application form or elsewhere in the particular applicant's file": paras 87 to 90 of Mr Hulbert's affidavit. 1151 Objections are taken to paras 85 to 89 of the affidavit. However, I admit those paragraphs as simply matters going to factors informing Mr Hulbert's decisions on these topics for Channic and CBPL, not as to the truth of any matter asserted. 1152 As to the interest rate, Mr Hulbert says that the rate was not unreasonably high and was justified in light of the risks taken by Channic in advancing the loan funds. He says that all credit providers known to him adopted a rate of 48% reducible as the rate for their loans. Mr Hulbert also says that the interest rate of 48% was reasonably necessary for the protection of Channic's legitimate interests of ensuring business survival and to avoid trading while insolvent. He says that that rate was reasonably necessary so as to ensure that Channic met its obligations under the NCCP Act to maintain adequate financial resources to uphold expected levels of compliance. 1153 In oral evidence, Mr Hulbert said that the interest rate of 48% was not "excessive": T, p 904, lns 30-32. That is partly because Mr Hulbert had a particular understanding which he put this way at T, p 904, lns 45-47: "I'm aware there were some other lenders in Cairns, possibly using 48%. I'm not sure". 1154 The question, of course, is whether an interest rate of 48% was excessive in all the relevant circumstances of the particular transactions engaging the particular consumers. 1155 As to the question of 20 minute approvals, Mr Hulbert says this at paras 95 to 97 of his affidavit: 95. I say, once all relevant information was collected, generally including bank statements and a Veda credit check, 20 minute approvals were possible because I was undertaking all Channic approvals, there was no hierarchy of decision makers and, as I had been lending since 2008, I had had a lot of experience assessing information concerning the financial affairs of people and a lot of experience assessing the general character of a person. 96. I say 20 minute approvals were also possible because Kevin Humphreys, with his enquiries and preliminary assessment, was undertaking an initial screening. 97. The advertising was worded to attract attention, because I faced competition from at least three of the same type of credit providers in the Cairns general area, at least 10 Cairns-based brokers with access to other similar credit providers elsewhere in Australia and over 20 online credit providers who could provide similar loans to approved applicants, according to their individual criteria and suitability assessments. 1156 In oral evidence, Mr Hulbert said this in relation to the "flyer" and 20 minute approvals at T, p 925, lns 33-37: Well, 20-minute approvals was something to help attract the customer. The 20-minute approval could be only undertaken after the client has given us all the required information and submissions have been done by Cash Brokers. The approval is not given until Channic approves it. 1157 Mr Hulbert says that as the credit representative for Channic, he offered loans to "all kinds of borrowers" from all ethnic and cultural backgrounds including Centrelink income recipients, single parents and people with bad credit histories so long as it could be demonstrated to him that at the time of the application, the applicant would be able to "afford to repay the determined amounts for the term of the loan": para 98. Mr Hulbert says that the assessment was made based on the circumstances at the time of the application. He says he considered people with bad credit histories because these histories reflected the past and may not necessarily reflect the present or future as the financial circumstances of individuals may change. He says that he generally obtained credit checks and bank statements for recent months. Mr Hulbert says that he regarded these documents as reasonable steps for verification of the financial position of the borrower. He says these documents gave an indication of "future financial circumstances at the time of the application and the likelihood of the borrower being able to comply with their financial obligations under the loan contract", as opposed to focusing only on past financial circumstances and the "repayment history associated with any previous loan": para 101. 1158 Mr Hulbert says that he regarded (as an indication that bad credit performance was a thing of the past), a borrower's ability to fund a relatively substantial deposit as a general indication of their "current ability to manage money, their having a buffer after all living expenses and their ability to save at the time of making the application": para 102; T, p 925, lns 19-25. Mr Hulbert also says this at T, p 925, lns 2-6: We didn't just target Centrelink or anything like that. We had done a lot of loans for people on full employment, some with some employment with Centrelink income as well. We had people that, I think, lived in 50-something different postcodes. Yarrabah was only a very, very small portion of the loans we did. 1159 As to the question of providing secured loans, Mr Hulbert says this at para 103 and following: 103. My commercial interests were best addressed with loans provided to borrowers who could meet their obligations under the loan as, notwithstanding the mortgage security of the car purchased with the loan, a failure to pay always meant a financial loss for my company, being either a direct loss or an opportunity cost generated loss. 104. I say that credit providers known to me, when lending amounts similar to those amounts Channic lent to the borrowers in this case, seek to have a mortgage, with the vehicle as security and the legal right to repossess the vehicle if there is a default in the repayment of the loan. 105. I say that the right to repossess a vehicle and the liability for any shortfall still remaining with the borrowers, were standard terms in all mortgage contracts I have studied. 106. I say that I explained the terms associated with repossession, mentioned in paragraphs 104 and 105 above, to all borrowers who, having heard this explanation and having the opportunity to read the credit contract and mortgage document, proceeded to agree to the terms and accept the loan funds. [emphasis added] 1160 Mr Hulbert says that an applicant always retains the right to reject the offer of a loan. He puts it this way at paras 107 and following: 107. I say that it was reasonably practical for the borrowers to reject any of the provisions of the loan contract and mortgage, as all they had to do was excuse themselves, walk out of my office and not enter into the contractual arrangement. 108. I say it was reasonably practical for the borrower to negotiate for the alteration of any provisions of the loan contract, they only had to ask, or seek professional advice from someone who could negotiate on their behalf. 109. In regard to negotiation, as referred to in paragraph 108 above, one of the borrowers named in the ASIC Statement of Claim filed with the Federal Court in connection with this case, Rhonda Yeatman, did negotiate a change to the interest rate on the settlement day and her repayments were calculated at the rate of 30% reducible per annum. 110. In regard to negotiation, as referred to in paragraph 108 above, there was no refusal, as all borrowers were asked if they had any questions concerning the credit contract, which provided an opportunity to seek change to a term or condition and none of those borrowers listed in the ASIC Statement of Claim … in connection with this case, did so. [emphasis added] 1161 In oral evidence concerning para 107, Mr Hulbert says that he did not place "undue pressure on any of the consumers" the subject of these proceedings, and had any of the consumers sought to negotiate the terms of the loan contract, he would have been prepared to enter into such negotiations. Mr Hulbert says that in the case of Yeatman, a cheaper interest rate was negotiated of 30% rather than 48%: T, p 904, lns 16-25. Mr Hulbert gave oral evidence that each consumer was told, in every case, that they could take the contract away and read it before being asked to sign it and each consumer as told, in every case, that they could seek legal advice: T, p 905, lns 5-17. 1162 Mr Hulbert also explains the business risks confronting Supercheap. 1163 He says that the risks were "not minimal". He says that the risks not only included recovering the wholesale purchase price of the vehicle and the costs incurred in reconditioning the vehicle, but also "an allowance for possible repairs during the Queensland Government Statutory Warranty Period and any repairs during an extended warranty period that may have been purchased" by a buyer of a car. Mr Hulbert says that these repair costs included both parts and work undertaken off-site and the cost of labour undertaken on-site. Mr Hulbert says that Supercheap also incurred the cost of locating suitable vehicles for wholesale purchase and resale, the opportunity cost of financing floor stock, the cost of marketing and administration costs associated with operating the car yard: para 117. Mr Hulbert says that the costs identified in para 117 averaged approximately $4,000.00 per vehicle: para 118. 1164 As mentioned earlier, Mr Hulbert makes reference in his evidence to the adoption and use of what is described as the "Standardised Expenses" model. Mr Hulbert explains that model in this way: 167. Before introducing the loan applicant to me, Mr Humphreys always applied a test relating to the applicant's living expense, referred to as "Standardised Expenses", in his preliminary assessment, which was indicated in the "Preliminary Test" document or otherwise indicated to me. 168. I generally examined Veda credit checks and bank statements as part of the assessment process, with the latter particularly providing consistent information on expenditure that alerted me to any case where the standardised formula was inappropriate, due to the particular credit applicant's expenditure patterns. 169. The "Standardised Expenses" test was calculated with reference to the expenditures of many customers and acknowledged general living costs in Cairns in a manner similar, but not identical to, and with the same general intent as, the Henderson Poverty Index. 1165 Mr Hulbert makes these observations concerning the process of final assessment: 175. As part of the final assessment, I did take notice of any documentation relating to the application for credit and the applicant's financial circumstances, which Mr Humphreys had previously collected and presented to me, and a Veda credit report was generally obtained during the preliminary or final assessment process. 176. As part of the final assessment, I did take notice of the credit assistance (brokerage) fee and included the amount in the total loan amount when assessing affordability. 177. When explaining the content of the credit contract and mortgage, I always mentioned the disbursement of loan funds, including payment of a brokerage fee to Cash Brokers and I cannot recall any customer Mr Humphreys introduced to me expressing surprise, or stating that they were unaware of the brokerage arrangement at that time, or at any time during the meeting that led to the applicant signing the credit contract and mortgage document. 178. The lack of comment referred to in paragraph 177 above is consistent with my belief that Mr Humphreys had made adequate disclosure and explanation of the role and cost of Cash Brokers, to borrowers. 1166 Mr Hulbert says that the credit assistance (brokerage) fees charged by CBPL were never the subject of criticism or complaint to him by any credit applicant. 1167 As already mentioned, a particular issue arose in relation to questions asked of Mr Hulbert by Dr Spence concerning the affidavit evidence of Mr Gordon and Ms Raymond. In the case of Mr Gordon, Dr Spence sought to adduce evidence from Mr Hulbert concerning quite specific matters to the effect that Mr Gordon had told Mr Hulbert that he did not have to pay any rent; that Mr Gordon did not have any phone expenses; that Mr Gordon had not borrowed any money from Centrelink and therefore had no CentrePay repayments to make; that Mr Gordon had never had a previous loan; and that Mr Gordon was receiving a pension at the time of the relevant transactions. Except perhaps as to the last matter, objection was taken to Mr Hulbert giving oral evidence about these specific expenditure matters and statements because Mr Hulbert had not set out any of these matters in his affidavit in response to the consumer affidavits and particularly Mr Gordon's affidavit (or that of Ms Raymond). ASIC served all of the consumer affidavits on 1 August 2014 (in accordance with the order of 6 May 2014) and although the respondents failed to serve their affidavits by the due date, 12 September 2014, they did file their affidavits by 3 October 2014 after having had the applicant's consumer affidavits for two months. 1168 ASIC contended that had the specific matters concerning those things Mr Gordon might have told Mr Hulbert about his expenses been addressed in Mr Hulbert's affidavit, ASIC might have obtained evidence in reply. Accordingly, I took the view that it was now too late for Mr Hulbert to begin to give new evidence about things said to him or his understanding of Mr Gordon's particular expenditure items. The same position applied concerning Ms Raymond. 1169 However, I proceed on the basis that all of the evidence about the method, approach, practice and behaviours described by Mr Hulbert in his affidavit concerning Channic and CBPL and his own approach, apply to the circumstances of the transactions with Mr Gordon and Ms Raymond. 1170 As to hardship, Mr Hulbert says this at para 180 and following: 180. I say that I was always prepared to accept a reasonable application for hardship from customers and arrange changes to the financial obligations of a customer who was genuinely having trouble meeting their loan repayment obligations. 181. In regard to the ten borrowers referred to in the ASIC Statement of Claim, in connection with this case, only one borrower made a hardship application. 182. The borrower referred to in 181 above was Ms Raymond who, as best I can recall, sought a financial counsellor's advice. 183. The result of Ms Raymond's hardship application … was that I agreed to a postponement period for her repayments, and other measures, and I ultimately wrote off the loan, without undertaking the debt recovery procedures that were available to me under the terms of the [loan contract] that Ms Raymond had entered into with Channic. 184. While no hardship application was received from the other customers [relevant to these proceedings], beyond letters and contact associated with alerting the borrower to their default, I did not institute formal court proceedings and wrote off any balance of the loan outstanding. 1171 As to the relationship between the debt and repossession of the car, Mr Hulbert gave this evidence in response to a question from Dr Spence at T, p 931, lns 1-13: Q: What happens to the financial relationship between Channic and the consumer if a consumer can't meet the payments and the car is repossessed? What happens to the debt still owing [to] Channic in terms of the car being repossessed? A: In every occasion up here, if the car has been repossessed, we have never pursued the debt. We have written it off. Even some of the cars we haven't repossessed, we have written the debt off and the client has still got the car. Q: And if you do repossess the car, what happens to the car? A: Well, it's generally put through auction … And then the money that we recover from that is applied to the balance. 1172 Mr Hulbert was taken by Dr Spence to a transcript of an interview Mr Hulbert had with Ms Egan and Mr Saad arising out of a private examination of Mr Hulbert pursuant to s 253 of the NCCP Act on 10 January 2012. In that transcript, Mr Hulbert expresses opinions about the nature of the Credit Contract relevant to the consumers in these proceedings and its complexity. This exchange occurred at pp 146 and 147 of the Transcript: Q: What do you think the impact of your credit contract is on your consumers? Do you think they are fairly serious? A: It's a commitment … Q: And for many of them it's a substantial part of their income that's going to these credit contracts? A: Sure, yes ... Q: But that factor leads you to have to … do more inquiries than you otherwise would? A: Yes. Q: What about the complexity of the credit contracts – how would you say that your credit contracts … A: Complexity? Q: Yes. You said before that they were quite big, that people didn't usually read them … A: They are, they are very … Q: They are very complex? A: Have you read one? Q: I have. I have read several of them. A: And they are quite – the reason why there quite complex is to cover the … consumer and the lender. [emphasis added] 1173 As to that sequence of exchanges, Mr Hulbert was asked why it was that he was describing the contracts as quite complex so as to "cover the consumer and the lender". Mr Hulbert gave evidence that he believed that the Credit Contracts were "quite complex" as they had been drawn by "legal people" so as to "cover the borrower, to cover the lender [and] cover the consumer bodies that get involved with all these cases": T, p 934, lns 14-23. Mr Hulbert was also taken by Dr Spence to an exchange at pp 185 and 186 of the Transcript that examination concerning the Credit Contracts in these terms: Q: But if you know in fact that they haven't [read the Credit Contract] because you gave them the contract and they haven't had time to read all of it, do you still let them initial it? A: Sure … what I'm saying is there's no – if they want to sit down there and take three hours to read the contract, not a problem, I'm not pushing, right. Q: Yes … the question was: if you give the person a contract to read and they say "No, I'm fine" and they just initial each page … A: Yes. Q: … what do you do in that scenario? A: Well, we just proceed. If they say they're fine, they're fine, you know what I mean? Q: Yes. A: Yes. Q: Do they ever ask you to explain the contract to them? A: Sometimes there will be little items they'll pick out or something, you know. [emphasis added] 1174 Mr Hulbert gave evidence that so far as the particular consumers in these proceedings are concerned, the approach reflected in the bold italicised answer above, did not occur "because what I was saying – well, when we proceed, we still proceed to describe the document to the person": T, p 941, lns 36-37. Mr Hulbert was asked by Dr Spence whether it was always the case that if a consumer asked about specific clauses of the contract, Mr Hulbert would explain those clauses to them. Mr Hulbert answered: "Yes, if – if I was requested to. Yes. I explained it as best as I could" [emphasis added]: T, p 941, lns 42-43. PART 20: THE EVIDENCE OF MR HULBERT GIVEN IN CROSS-EXAMINATION 1175 I have already mentioned some aspects of Mr Hulbert's evidence given in cross-examination. However, I will address this aspect of his evidence in this separate part as Mr Hulbert was taken to some of the particular transactions and particular documents relevant to the consumers the subject of these proceedings. In other words, in these respects Mr Hulbert was taken from the general to the particular. 1176 As to that, Mr Hulbert accepted that so far as he was aware, all of the documents held by Channic and CBPL for the period June 2010 to June 2012 relevant to the borrowers in these proceedings, had been produced to ASIC (and there were no other records or working documents) including all manuals for each company (and there were no other manuals): T, p 952, lns 9-18; lns 20-27. Mr Hulbert gave evidence that the files from Channic and CBPL "should be complete" (subject to the difficulty of large scale copying) and the files should reveal what was done and the information obtained and what was not obtained: T, p 952, lns 40-44. 1177 Mr Hulbert accepted that Channic produces a number of documents in the course of its business including a Credit Suitability Assessment; a Loan Inquiry Checklist; and a Verification Checklist. 1178 As to the bank statements upon which CBPL was to rely in formulating its preliminary assessment, Mr Hulbert accepted that no bank statements had been obtained from Brim, Harris, Noble and Yeatman. Mr Hulbert also accepted that it was "possibly" correct that if a copy of a bank statement was not on either the Channic or CBPL file, no bank statement had been obtained: T, p 953, ln 26-28. Mr Hulbert also accepted that it was "possibly" correct that if any one of the relevant borrowers had obtained a loan from another financier (such as Cash Converters) and no statement for the loan was on either the Channic or CBPL file, no such statement had been obtained: T, p 953, lns 30-35. Mr Hulbert did not accept that there were no bank statements on the Channic or CBPL files relating to Ms Kingsburra, Ms Dabah and Ms Mudu: T, p 956, lns 3, 15, 17. 1179 As to Ms Kingsburra, Mr Hulbert was taken to Channic's Verification Checklist (Folder 3, Tab 23) which identifies the documents used for verification. That document notes, as the source documents, a loan application form, Centrelink statements, a driver's licence and a Veda credit report. The checklist does not tick or note any reference to a bank or credit card statement as a source document. Mr Hulbert also accepted that he would check "very carefully" what source documents he was looking at when making his assessment: T, p 957, lns 3-4. Mr Hulbert accepted that if a bank statement had been on the file it would have been produced to ASIC: T, p 957, lns 10-11. Mr Hulbert gave evidence that the absence of a bank statement in the files produced to ASIC "could be an oversight": T, p 957, ln 16. 1180 As to Ms Dabah, the files produced to ASIC do not contain a bank statement. The Channic Verification Checklist (Folder 4, Tab 23) records that the source documents used by Channic were a loan application form, Centrelink Statements, a driver's licence and a Veda credit report. Mr Hulbert accepted that the checklist does not identify or tick any use of bank or credit card statements as a source document: T, p 957, lns 46-47. Nevertheless, both in relation to Ms Kingsburra and Ms Dabah, Mr Hulbert believed that a bank statement had been obtained. He accepted that if that was so, the Verification Checklist in each case was incorrect. Mr Hulbert also accepted that in the case of the joint applicants, Ms Dabah and Ms Harris, the letter from Mr Humphreys for CBPL does not make any reference to a bank statement (Folder 4, Tab 1). Mr Hulbert also accepted that the credit application form for Ms Dabah did not identify a bank statement as a supporting document. The application form does not identify any other document: T, p 958, lns 14-30; ln 44. 1181 As to Ms Raymond, Mr Hulbert gave evidence that Channic went directly to Ms Raymond rather than dealing with her through an application made by CBPL. Mr Hulbert accepted that when Channic lent monies to her, she was in default on a previous loan and had been in default for a long time. Her car was repossessed. She had not made good on the loan repayments. Mr Hulbert subsequently "signed her up again for a new loan": T, p 955, lns 1-20. 1182 Mr Hulbert also gave evidence that he did not have "any real specific recollection of the individuals and the occasion when [he] went through the loan contract with the [consumers]" relevant to these proceedings. Mr Hulbert gave evidence that he did not believe that he had any notes on any of the files about going through the "loan contract debt" with the consumers. He accepted that there was no note identifying a "standard spiel" he might have said to each individual consumer: T, p 955, lns 22-35. 1183 Mr Hulbert gave evidence that when consumers came to the car yard, he would generally pass them over to Mr Humphreys. Mr Humphreys would talk to them about finance. A credit application form would be prepared. If Mr Hulbert believed that "the loan would go through", a deposit would be taken from the consumer although generally deposits were taken after a credit application form was submitted. A lot of consumers would come back later with a deposit: T, p 960, lns 39-45. Some consumers paid a deposit "on the very first day" and that was before Channic undertook its obligations under the NCCP Act: T, p 961, lns 4-5. Generally, consumers did not pay a deposit until after the loan was approved: T, p 961, lns 8-9. 1184 Mr Hulbert accepted that in the case of the consumers relevant to these proceedings, the deposits represented about a quarter of the purchase price of the cars. Mr Hulbert accepted that the deposit was a significant amount for most people: T, p 961, lns 40-43. 1185 Mr Hulbert accepted that by the time he came to speak to the consumers about the credit contract, they had already parted with their deposit monies and, by then, there was little point in starting to speak to the consumers about their expenses or their usual living expenses. 1186 Mr Hulbert gave evidence that, before then, he had spoken with the consumers and generally met with them in his office. 1187 Mr Hulbert gave evidence that the purpose of the loan was "obvious" and he well knew the purpose for which the consumer sought the loan. Mr Hulbert gave evidence that if any of the consumers did not wish to proceed with the loan contract, they were free not to go ahead with it, and if they did not wish to proceed, the deposit would be refunded. Mr Hulbert gave evidence that they were never at risk of losing their deposit: T, p 962, lns 40-47; T, p 963, lns 1-2. 1188 Mr Hulbert accepted that not many of the consumers test-drove the car before buying the car. Mr Hulbert did not accept that the consumers in this case were "desperate" to purchase a car: T, p 963, lns 30-34. 1189 As to the use of the sign, advertising finance from the site of the dealership with "20 minute on site approvals", Mr Hulbert gave this evidence: "We implied … that we could possibly do a 20 minute approval after we collected and verified all our data. You couldn't possibly do a 20 minute application": T, p 964, lns 24-26. Mr Hulbert accepted that people came to the car yard based "on a recommendation" and that "it was [Mr Hulbert's] habit to pay people money who gave recommendations [a spotter's fee]": T, p 965, lns 24-30. Mr Hulbert also gave this evidence: "What we conveyed with the sign [was that] we would look at all these people as an applicant. It didn't say we would approve them". As to this matter, the following exchange occurred with ASIC's counsel at T, p 966, lns 33-45; T, p 967, lns 14-23: Q: So the 20 minutes would relate to Channic making reasonable inquiries, verifications and performing a credit suitability assessment, is that right? A: After Channic had carried out its work, we could give an approval within 20 minutes … [after] it's carried out its work verification … Channic could give an approval within 20 minutes after – relayed to the customer that the loan had been approved. Q: After what? A: Channic had carried out its verifications and [assessed] suitability. Yes. Q: That's the point, Mr Hulbert. It has got to carry out all of those? A: That's right. Q: And once it has done that, it has reached the end? A: Yes. [emphasis added] 1190 As to the Veda credit checks, Mr Hulbert gave evidence that they were conducted over the internet. Mr Humphreys was provided with forms to undertake the credit check. He would ask consumers to sign the privacy form and he would then undertake the credit check. Channic paid for the credit check. Mr Humphreys was "doing it for his own purposes as well [as] for [CBPL]". Mr Hulbert thought that the Veda credit check documents would be in each of the CBPL files for a consumer, and if it was not, CBPL might have "moved them on to Channic". Mr Hulbert accepted that in the case of the application for finance put to Channic by Mr Humphreys for Ms Dabah and Ms Harris, the application letter (Folder 4, Tab 1) contains no reference to a credit check having been undertaken: T, p 968, ln 28. Although none of the forms of letters sent by Mr Humphreys for CBPL (for the consumers relevant to these proceedings) contains a reference to a credit check having been undertaken, Mr Hulbert says that Mr Humphreys sent the credit checks to Channic. Mr Hulbert did not accept that he had undertaken the credit checks after receiving the application from Mr Humphreys: T, p 968, lns 30-39. Mr Hulbert explained that, to the best of his recollection, the credit check was "done by Mr Humphreys for Cash Brokers": T, p 969, lns 20-21. 1191 Mr Hulbert was then taken to the Preliminary Test document (Folder 4, Tab 9) concerning the loan to Ms Dabah and Ms Harris. Mr Hulbert recognised the document. He said that it was "something performed by Mr Humphreys". Mr Hulbert gave evidence that there was a document used by Channic and another used by CBPL and although the Preliminary Test might have had "Channic" on the template, CBPL nevertheless carried out the assessment. Mr Hulbert said that CBPL and Channic had their own computers "and different templates for Cash Brokers and Channic". Mr Hulbert gave evidence that although the Preliminary Test may have had Channic's name on it, Mr Humphreys may have "picked up" a Channic form "by accident": T, p 969, lns 32-46. Apart from the case of Ms Raymond where Channic undertook the Preliminary Test itself, every Preliminary Test relating to the consumers in this proceeding displays Channic Pty Ltd at the top of the document notwithstanding that the document is said to originate with the broker, CBPL. 1192 Mr Hulbert did not accept that this circumstance suggested that Channic and CBPL were not operating separately. Mr Hulbert asserted that the Preliminary Test was in each case (apart from Ms Raymond) carried out by Mr Humphreys for CBPL. 1193 As to the content of the Preliminary Test (in the case of Ms Dabah and Ms Harris as an example), Mr Hulbert accepted that the document recited a motor vehicle purchase as the loan purpose at $6,990.00; a cash deposit of $1,800.00; income capacity statistics for each borrower taken from Centrelink statements; deductions from that income in the form of expenses including rent; and a repayment of a Centrelink advance at $55.51. Mr Hulbert also accepted that but for those expenses just mentioned, the Preliminary Test does not include the actual living expenses of the borrower and that CBPL did not seek to make an assessment of the borrower's actual living expenses, that is, their day-to-day expenses, "because we had it in our cost of living": T, p 971, lns 22-26. 1194 Mr Hulbert accepted that some "fixed expenses" such as "utility bills" and things "like that" were not listed and not taken into account because "we include it in our benchmark": T, p 972, lns 1-9. Mr Hulbert gave evidence that the benchmark or notional living expenses, based on the standardised expenses model, included "all their extras like their food and those other expenses": T, p 972, lns 27-28. Mr Hulbert gave evidence that although he did not try to ascertain the actual expenses of the borrower, he did make inquiries "just to see if there was anything outstanding there": T, p 972, lns 40-41. 1195 As to the Credit Application Form, Mr Hulbert was taken to the example of that form in the files relating to the application by Mr Gordon and Ms Stanley (Folder 7, Tab 2). Mr Hulbert gave evidence that the form used by Mr Humphreys had been supplied by Mr Hulbert. Mr Humphreys had been instructed by Mr Hulbert as to how the form was to be filled out. Mr Hulbert generally knew the way in which Mr Humphreys filled out the form. In the case of the form filled out at Tab 2, Mr Hulbert thought that the writing was that of Mr Humphreys: T, p 973, lns 23-31. Mr Hulbert accepted that, in this example at Tab 2 concerning Mr Gordon, no information is recorded in relation to expenses including living expenses. Similarly, Mr Hulbert accepted that in the example at Tab 3 concerning Ms Stanley, no expenses are recorded including living expenses: T, p 974, lns 1-7. Mr Hulbert accepted that these documents in the ordinary course are forwarded to him and that he received those documents as attachments to the CBPL letter from Mr Humphreys to Channic (Tab 1). However, Mr Hulbert gave evidence that he spoke directly to Mr Gordon and Ms Stanley after seeing the credit application forms. Mr Hulbert thought it odd that the forms contained no entry for rent. Ms Stanley explained that he lived on his own land and paid no rent. He had built "his own place there": T, p 974, lns 21-29. Mr Hulbert accepted that the Channic Verification Checklist (Folder 7, Tab 21) contains a section identifying one source of information as "Personal interview with customer". He also accepted that the checklist contained no note that an interview had been carried out with either borrower. However, Mr Hulbert gave evidence that "the interview was carried out": T, p 974, lns 35-43. Mr Hulbert did not accept that because the Verification Checklist did not refer to a personal interview, that he had not carried out such an interview: T, p 975, lns 1-4. The following exchange then occurred at T, p 975, lns 6-26: Q: Mr Hulbert, do the documents that you've produced from Cash Brokers and from Channic, in terms of what they purport to indicate, have any connection with reality at all? A: Please explain that. Reality? Q: … do you think they purport to record the reality of the processes you went through? A: They – it doesn't report all the processes we went through, no. Q: And in none of the Channic files do you ever check – so in the files which are the subject of this action where Channic has purportedly prepared the verification checklist, is the personal interview with the customer ever ticked? A: That's probably correct, yes. Q: Because it's never carried out? A: I'm telling you we carried out personal interviews. Q: When they came back to sign? A: We carried out interviews before as well … [emphasis added] 1196 Mr Hulbert was taken to the application letter from Mr Humphreys to Channic (Folder 7, Tab 1, Mr Gordon and Ms Stanley). Mr Hulbert accepted that the letter is dated 29 September 2010. Mr Hulbert also accepted that the Credit Suitability Assessment records that it was made on 24 September 2010. Mr Hulbert asserted that the date of 24 September 2010 was a typographical error: T, p 975, ln 37. 1197 Mr Hulbert was taken to the files in relation to Ms Dabah (Folder 4) and, in particular, the Credit Application Form (Tab 3). Mr Hulbert recognised the handwriting of Mr Humphreys on that form in the box headed "Financial Information". Mr Hulbert accepted that the number of expenses identified in that box was "derisory" and that Mr Humphreys had recorded "very few details": T, p 976, lns 14-17. In answer to the proposition that Mr Hulbert was not really interested in the living expenses of the consumer borrowers, Mr Hulbert said: "We took note of some of their living expenses to make sure they weren't out of the ordinary": T, p 976, lns 20-21. This exchange then occurred: Q: Now, just so you understand what I'm putting to you, you accepted – in the way in which these forms were filled out – in your capacity as a director of Cash Brokers? A: Correct. [emphasis added] 1198 Mr Hulbert thought that Mr Humphreys had prepared each of the letters from CBPL to Channic for each of the relevant consumers in the sense that he probably typed them up unless he requested someone in the office to do it for him: T, p 976, lns 31-37. Mr Hulbert was taken to Folder 3 concerning the documents in relation to Ms Kingsburra and, in particular, Tab 1 by which Mr Humphreys tells Channic that Ms Kingsburra has requested a loan for $7,290.00. Mr Hulbert accepted that he therefore understood that that was the amount Ms Kingsburra was wishing to borrow depending upon whether she "wanted the brokerage fee added": T, p 976, lns 45-46. Mr Hulbert accepted that the application letter made no mention of a brokerage fee: T, p 977, ln 1. Mr Hulbert was taken to the Credit Application Form at Tab 2. Mr Hulbert accepted that the form contains no details of the price of the car or the deposit or the amount of any weekly payment. Mr Hulbert gave evidence that "the customer is given the price of the car when they've received their money" [emphasis added]. Mr Hulbert added this: "The customer is given at least three points [as to] what they're paying for the car. When they've paid their deposit they're told what the payment is" [emphasis added]. 1199 Mr Hulbert was taken to p 2 of the Credit Application Form. He accepted that the form contained "not much information about expenses" and that the form was "much the same as most of the other forms". He also accepted that under the "Supporting Documents" part of the form on p 3, nothing is ticked and, in particular, the "Bank Statement" box is not ticked: T, p 977, lns 37-46. This exchange followed at T, p 978, lns 28-30: Q: … I want to suggest to you, Mr Hulbert, that this is the extent of the inquiries about the financial - the expenses of the customer? A: That's right in most cases. 1200 As to the use of the bank statements, this exchange occurred at T, p 980, lns 6-30: Q: And you said yesterday, did you not – I'm paraphrasing – you're primary sources were Centrelink statements and bank statements? A: Yes. Q: Well, I've already put to you that you didn't get bank statements in the majority of the loans …? A: On some of the loans. Q: Now, is it the case that when you got the bank statements, you generally obtained them for bank details and nothing else? A: When we got the bank statements? Q: Yes. A: We would be checking to see what other loan contracts may be on there … or other income that may be on there … Because these people … would get other income that wasn't disclosed at the time on their Centrelink statements. Q: So you didn't obtain them for the purposes of trying to work out their expenses? A: No. I told you about expenses … We didn't have a table where we itemised every expense. [emphasis added] 1201 Mr Hulbert also gave evidence that he looked at the balance on the bank statement and he looked to see if the consumer had a habit of withdrawing monies at known places "where poker machines are and things like that, we would be looking for that type of thing as well": T, p 980, lns 34-37. 1202 Mr Hulbert was then taken to the Preliminary Test concerning Ms Kingsburra (Folder 3, Tab 9). In that document, the standardised expenses formula is deployed based on expenses of $950.00 for a single person for a month and a loading of $325.00 for each child. Mr Hulbert accepted that, using the formula, he attributed to a single person living expenses of $950.00 a month. Mr Hulbert also accepted that he did not make any assessment of the expenses encompassed within the figure of $1,300.00 for a de facto couple because Mr Hulbert took into account the total number of people involved once the formula was engaged. Mr Hulbert accepted that he did not compare the formula he used with any other indexes like the "Henderson Poverty Index". The proposition was put to Mr Hulbert that in the period 2010 to mid-2012, he did not know what expenses the figures of $950.00 or $1,350.00 was intended to cover. Mr Hulbert said that he did not use the formula throughout that period and changed over to a different approach in 2011. As to the period up to the time when Mr Hulbert ceased to use the formula, Mr Hulbert said that he had received some training on the items intended to be covered by the formula. Mr Hulbert thought that insurance expenses were probably covered by the formula: T, p 984, ln 18. He thought that expenses related to gas would form part of utilities and would be covered by the formula. He also thought that pharmaceutical expenses for families would be covered by the formula. Mr Hulbert did not have any document which might tell him the expenses incorporated within the figures of $950.00 and $1,300.00. 1203 Mr Hulbert referred to a "buffer" arising out of an excess of income over expenses: T, p 985, lns 1-2. Mr Hulbert gave evidence that he did not have any written down figure which would identify a sufficient surplus or buffer. He said that the buffer did not have to be "significant" although "we would use more than a dollar". Mr Hulbert said: "We would like to see a buffer": T, p 985, lns 32-42. This exchange then occurred (T, p 985, lns 44-46): Q: Well, did you have any protocol in place for determining from whether or not there was an excess of income over expenses, whether the loan was suitable? A: There was a lot of things taken into account [in determining whether] the loan was suitable. 1204 Mr Hulbert seemed to accept that on 10 January 2012 in an interview with ASIC he had expressed the opinion that so long as the buffer was "positive", it was acceptable to him for the purposes of lending: T, p 986, lns 5-6. Mr Hulbert also seemed to accept that if there was a surplus then it would be "reasonable" to lend "but there [were] other loans which were rejected even that had surpluses": T, p 986, lns 19-21. Mr Hulbert was asked whether it had been his view that the presence of a surplus was his "main criteria" for lending. He said that it was not "the main criteria". This exchange then occurred at T, p 987, lns 3-5: Q: Mr Hulbert, can you answer my question? A: All right. Q: Did you ever believe it to be – was it ever your view that so long as there was a positive amount shown on the preliminary test, that that would be sufficient? A: No. [emphasis added] 1205 Mr Hulbert was taken to a series of exchanges with Ms Egan in the course of an interview on 10 January 2012 in which Mr Hulbert expressed the position that any positive amount over "our formula" would be considered by him as sufficient for lending purposes. Mr Hulbert accepted that when he was considering the Preliminary Test, the matter he was seeking to determine was whether or not the loan is "not unsuitable" for the borrower. The proposition was put to Mr Hulbert that his evidence to ASIC was that if there was a "positive amount" in the Preliminary Test then he would consider that the loan was "not unsuitable". Mr Hulbert accepted that "it is a point towards not being unsuitable": T, p 988, lns 11-13. Mr Hulbert also accepted that there was no "buffer" spoken about in those exchanges with ASIC: T, p 988, ln 15. Mr Hulbert was taken to pp 128, 129, 242 and 243 of the Transcript of Interview of 10 January 2012 (Folder 24, Tab 1, Ex 41) in which, in relation to the Preliminary Test, Mr Hulbert had said: "When I see the surplus there I believe the loan is suitable" and in response to the question put to him: "That's all you look at? The surplus at the bottom?" Mr Hulbert answered: "Yes". Further, in answer to the question then put to him: "Is that reasonable?" Mr Hulbert responded: "That's reasonable for me". Mr Hulbert accepted that he had answered those questions in that way "at the time" but added: "That's not my evidence", in these proceedings: T, p 989, lns 5-8. Mr Hulbert explained that he went into the examination on 10 January 2012 without knowing the questions that would be asked of him over a lengthy period. Mr Hulbert was taken to further answers he gave in the course of the interview with Ms Egan in relation to income and expenditure. In that transcript, Mr Hulbert said that he looked at the surplus and having done that, he would look at the income and the expenditure. He was then asked, in that interview: "And you make no other inquiries? And you can purely make a decision that this loan was suitable based on looking at the income, the expenditure and the surplus?" Mr Hulbert responded: "Well, that's the main criteria … yes". 1206 Having been taken to those matters, Mr Hulbert agreed that having read the transcript he had accepted that a surplus was his main criteria in determining the lending. When the proposition was put to him that he had earlier said in cross-examination that the presence of a surplus was not the main criteria, he said: "It was one of the criterias". He added that even though a proposed borrower had a surplus that did not mean that every loan "went through": T, p 990, lns 36-45. 1207 Mr Hulbert was then taken to the Channic and CBPL files for Ms Kingsburra "as an example of your files generally" (Folder 3). Tab 1 is a copy of the letter from Mr Humphreys for CBPL to Channic. Mr Hulbert accepted that the letter is dated 6 July 2010 and that he would expect that date to be "about the day" that Mr Hulbert received the letter "unless there's a typographical error". Mr Hulbert added that there may be a typographical error: T, p 991, lns 14-19. The letter refers to five attachments including a completed finance application and "Income verification Centrelink Statements". Mr Hulbert was then taken to Tab 10 which is Mr Hulbert's letter in reply to Mr Humphreys. The reply letter is dated 6 July 2010. The reply letter says, among other things: "Please be advised [that] the assessment we made [was] to decide the credit contract referred to above [Kingsburra] was not unsuitable for the client/s". Mr Hulbert accepted that he would not have sent that letter without having undertaken "the verifications" although he thought that the letter might have "the wrong date on it". Mr Hulbert thought that "someone else might have prepared" the reply letter. He said that office staff "quite often" prepared these reply letters. Mr Hulbert initially gave evidence that sometimes, although not always, office staff prepared the checklists as well, but then, on reflection, gave evidence that only he "did the checklists". He added that although office staff prepared the reply letter, he always prepared the checklists: T, p 992, lns 14-32. Mr Hulbert added that if he had "overlooked things that hadn't been ticked, then it's my responsibility". 1208 Mr Hulbert was then taken to Folder 3, Tab 21 which contains Channic's "Credit Suitability Assessment". Mr Hulbert gave evidence that this document "could be prepared by an office staff [member]": T, p 992, ln 45. He accepted that this document could have been prepared by someone else. He accepted that he had signed the document and that, on the front page, it is dated 6 July 2010. Mr Hulbert said that "that was prepared by someone else" and added that the presence of that date did not mean that the assessment was done on that date: T, p 993, lns 10-14. Mr Hulbert gave evidence that the period covered by credit suitability assessments undertaken by him was "a period up to 90 days, or something like that". 1209 Mr Hulbert was then taken to Folder 3, Tab 22 which contains Channic's "Loan Inquiry Checklist". Mr Hulbert accepted that that document is signed by him and it bears the date 6 July 2010. Mr Hulbert gave evidence that: "Someone else probably prepared it": T, p 993, lns 43-46. Mr Hulbert was then taken to Folder 3, Tab 23 which is Channic's "Verification Checklist". He accepted that he had signed that document and it bears the date 6 July 2010. Mr Hulbert gave evidence that, in the case of this document, "it wasn't the correct date possibly": T, p 994, lns 11-12. Mr Hulbert said that he would "not necessarily" have prepared this document and, again, it could have been prepared by one of "the office staff", with "documents sent over from Cash Brokers": T, p 994, lns 14-20. Mr Hulbert was asked what he had done, in this case, to verify the information received from Cash Brokers and said that he "probably spoke to [the borrower] at some period" and "didn't tick it" on the Verification Checklist. 1210 As to personal reference checks, in this case, he could not remember whether he had undertaken that step. 1211 Although Mr Hulbert believed that he had received a bank statement relating to Ms Kingsburra, he accepted that Channic's Verification Checklist did not record any bank statement as a source document for verification: T, p 995, ln 6. Mr Hulbert gave evidence that as to the "ticking" of source documents, he did the "actual ticking" and then signed it. He accepted that he signed it above the date, 6 July 2010. Mr Hulbert accepted that he had ticked, as one source document, "Centrelink statements". Mr Hulbert also accepted that the Centrelink statements were not delivered until 13 July 2010 and thus the date of 6 July 2010 was "another date error": T, p 996, lns 12-15. Mr Hulbert said that the Verification Checklist could not have been done until 13 July 2010 and the document was probably not filled in until 13 July 2010. Mr Hulbert thought that Mr Humphreys might have made an error in the date: T, p 996, lns 27-28. This exchange then occurred: Q: And that the letter you wrote back had an error in the date? A: That's right. Q: And the verification checklist had an error in the date? A: That's right. Q: As did the loan inquiry checklist? A: Yes. Q: And the credit suitability assessment? A: Yes. Q: … and your letter to Mr Humphreys also contained the error? A: … if that's the case. Q: And I think you suggested that this [the reply letter at Tab 10] was prepared by office staff. A: Sorry, the document probably is supplied, yes, by the office staff. Yes. Q: So all three of you made errors in the dates? A: That's correct, yes. [emphasis added] 1212 Mr Hulbert was then taken, again, to Folder 3, Tab 9 which contains the Preliminary Test document signed by the broker. Mr Hulbert accepted that (apart from the application by Ms Raymond) the Preliminary Test was forwarded to Channic by CBPL as correct, in the format reflected at Tab 9. Mr Hulbert also accepted that this was the form in which he, as a director of CBPL, "wished it to be forwarded": T, p 997, lns 25-31. Mr Hulbert accepted that the Preliminary Test makes no attempt to suggest that the proposed loan identified in the test "was not unsuitable for the borrower" and explained that, taken in conjunction with "our discussions", Mr Humphreys was sending the document to Channic "in the belief that it was suitable": T, p 997, lns 33-37. Mr Hulbert accepted that he was aware that the test contained no statement that the loan was not unsuitable. Mr Hulbert also accepted that he knew that the Preliminary Test did not purport to cover the period in which the loan "might be entered into": T, p 997, lns 46-47; T, p 998, ln 1. Mr Hulbert thought that because there was no Centrelink statement on 6 July 2010, Mr Humphreys must have come back to the template and then "continued to proceed with the – the full assessment" by inserting information. 1213 Mr Hulbert was then taken to Folder 3, Tab 77 which contains a copy of Ms Kingsburra's bank statement for the period 27 February 2010 to 31 May 2010. Mr Hulbert thought that, although there is nothing in the documents before the Court to suggest that Ms Kingsburra's bank statement was on the files of Channic or CBPL, he nevertheless had the bank statement before him. Mr Hulbert accepted that an examination of the bank statement shows that the pattern of her income receipts and expenditure of monies is that money comes in on day one and is "all out the same day, and into deficit": T, p 1000, lns 34-35. However, Mr Hulbert gave this further evidence: "Yes, but what I'm saying is that it's not the total criteria that someone has got to have X amount of money in their bank account all the time": T, p 1000, lns 37-39. Mr Hulbert also said this: "Well, I've spoken to a lot of customers and a lot of customers run their accounts this way, that they don't keep money in their accounts, and this customer still made a lot of payments, regardless of the way she ran her bank account": T, p 1000, lns 44-46. This exchange then followed: Q: But, by necessity, they are presently spending each week more than they're receiving. Do you agree? A: That's what they choose. Q: Yes. That's right? A: That's what they choose. Q: Well, when you say "choose" their expenses exceed their income and that's what you pick up from this though, do you not? A: No. I don't pick that up. Q: You don't pick that up? A: No. Their expenses – I don't know what they spend their excess money on. Q: And you don't inquire? A: I don't know what they spend their excess money on. Q: And you don't inquire? A: What they spend their excess money on? Q: Yes. A: No. [emphasis added] 1214 Mr Hulbert was then taken to Folder 9 which contains the documents relating to Mr and Mrs Noble. Mr Hulbert accepted that the files do not contain a bank statement for them. Mr Hulbert was taken to a bank statement obtained by ASIC for the period 29 September 2010 to 1 December 2010. Mr Hulbert accepted that had such a bank statement been obtained, the first thing that he would look at is the spending patterns and income patterns reflected in the statement. Mr Hulbert gave evidence that Channic always tried to "get the loans payable in conjunction with the payment they [borrowers] received": T, p 1002, lns 1-2. In this example, Mr Hulbert accepted that on 1 October 2010, the account is in credit of only $3.89 and that it stayed that way until 5 October 2010 when a Centrelink Parenting Payment was received of $131.60. Mr Hulbert accepted that on 5 October 2010, the money was expended with the result that by 6 October 2010 the account was overdrawn by $63.98 and that there remained no money in the account until an AusGov Families Payment on 12 October 2010. The proposition was put to Mr Hulbert that in relation to the consumers the subject of this proceeding, if those consumers are taking money out on the day and spending it, they will not have any demonstrated excess funds to repay a loan. Mr Hulbert thought that conclusion was not correct because people had subsequently proven that they could make the repayments. This exchange then occurred: Q: It's not a question of whether they can; it's whether or not it's suitable. Understand that? A: I'm sure the people think that it's suitable … Q: And, Mr Hulbert, that's the way it is with the borrowers, what with that – in this case, that largely the money went out of their accounts almost immediately it's received from Centrelink, or all of their wages, in the case of Yeatman. A: If that's what they wish to choose to do. [emphasis added] 1215 Mr Hulbert, in these exchanges with ASIC's counsel, seemed to accept that if he had examined the bank statements available to him, for the purpose of understanding the patterns of income and expenditure of the potential borrowers, before he made a loan to any one of them, the clear pattern which would have emerged was that they were all spending their money "very quickly". However, Mr Hulbert was of the view that "not everyone kept their money in their bank account": T, p 1003, lns 13-31. Mr Hulbert accepted that so far as he could recall (apart from Yeatman), all the other borrowers relevant to this proceeding defaulted on their loans. 1216 Mr Hulbert gave evidence that in order to try and comply with the NCCP Act, he had retained a firm in Sydney to prepare policy manuals for Channic and CBPL and prior to that date, those companies had "a different system" in place although Mr Hulbert could not recall the elements of that system. However, it "probably" involved "different documents entirely" to the ones provided in the manuals. 1217 Mr Hulbert was taken to Folder 22 which contains policies and procedures manuals for Channic and CBPL. Tab 1 is a policy document for CBPL described as "Fit and Proper/Organisational Competence Policy and Procedures". It bears the date 14 November 2010 which is the date Mr Hulbert approved it for CBPL. The Document Version Control Table recites a Board approval date of and an "Effective date" of 14 November 2010. Tab 2 is a CBPL document entitled "Compliance Plan". It is also dated 14 November 2010. Mr Hulbert said that CBPL was "using the documents before that date", or at least "supplements from it" although he could not remember the supplements he thinks he was using. Mr Hulbert gave evidence that these documents had to be lodged with ASIC as part of the "credit licence applications". CBPL lodged its application, electronically signed by Mr Hulbert, on 22 December 2010 and Channic lodged its application, electronically signed by Mr Hulbert on 13 December 2010. 1218 Mr Hulbert was then taken to Tab 12 which is a CBPL document entitled "Loan Inquiry Checklist". The document was approved by the Board (Mr Hulbert) on, and had an effective date of, 14 November 2010. At the back of the document is an Appendix attaching a pro forma Loan Inquiry Checklist. The policy document itself sets out the reasonable enquiries to be made about a consumer's financial situation and identifies nine areas of inquiry including the consumer's current amount and source of income or benefits, the extent of the consumers fixed expenses, the consumer's variable expenses, the extent to which any existing debts are to be repaid from the credit advanced, the consumer's credit history, the consumer's circumstances, assets (and their value) and any significant changes to the consumer's circumstances that are reasonably foreseeable. Mr Hulbert accepted that by lodging the documents with ASIC he was telling ASIC that the Board had approved their use and that the documents would be used: T, p 1006, lns 34-39. 1219 In this context, Mr Hulbert was taken to Folder 10 which contains the CBPL and Channic documents relating to Ms Kerryn Smith. The letter of application by Mr Humphreys to Channic for Ms Smith (Tab 1) is dated 6 April 2011. Mr Hulbert believed that if the Loan Inquiry Checklist had been used by CBPL in relation to Ms Smith's application, the document would be on the CBPL file: T, p 1007, lns 8-9. However, Mr Hulbert gave evidence that if ASIC did not receive a copy of the Loan Inquiry Checklist from CBPL's file, it might perhaps have been "lost or something like that" due to "a lot of changes and movements": T, p 1007, lns 37-40. 1220 Mr Hulbert was taken to Tab 13 of Folder 22 which is a CBPL document entitled Verification Checklist. The document is dated 14 November 2010 and it recites that the Board approval date and the Effective date is 14 November 2010. It attaches as an Appendix a pro forma Verification Checklist. Mr Hulbert was taken to Tab 14 which is a CBPL Suitability Assessment Form also dated 14 November 2010. It recites a Board approval and Effective date of 14 November 2010. It attaches as an Appendix a pro forma Credit Suitability Assessment Form. 1221 The proposition was put to Mr Hulbert that in the case of the CBPL file for Ms Smith, the file does not contain a Verification Checklist or a Credit Suitability Assessment. Mr Hulbert responded: "Right. It could have gone missing … the file could have gone missing": T, p 1008, lns 20-24. Mr Hulbert rejected the proposition that even though he had indicated to ASIC that he was adopting these policies, he simply did not follow the policies: T, p 1008, lns 26-28. 1222 Mr Hulbert was then taken, again, to Folder 9 which relates to Mr and Mrs Noble. The CBPL Application Letter to Channic for them is dated 2 March 2011. Mr Hulbert accepted that the CBPL file contains no Loan Inquiry Checklist, Verification Checklist or Credit Suitability Assessment, being the three forms adopted by CBPL on 14 November 2010. Mr Hulbert accepted that if these forms had been completed, they would "probably" have been sent to him by Mr Humphreys. He accepted that there is no mention of any of these forms in the letter of 2 March 2011 from Mr Humphreys (Folder 9, Tab 1): T, p 1009, lns 14-24. 1223 Mr Hulbert was then taken to the policy procedures and documents adopted by Channic. 1224 Mr Hulbert accepted that Channic had adopted a similar set of documents to those adopted by CBPL. Tab 29 of Folder 22 contains a policy document for making reasonable inquiries about a loan applicant's financial situation and requirements and objectives. It attaches a pro forma Loan Inquiry Checklist. Tab 30 is a policy document concerning reasonable steps to be taken to verify a loan applicant's financial situation. It attaches a Verification Checklist. Tab 31 is a policy document establishing a form to be used to conduct an assessment of the suitability of credit for a customer. It attaches a pro forma Credit Suitability Assessment document. Each document recites that the Board approval date and Effective date for the policy and the relevant attachment is 14 November 2010. The policy document (Tab 29) for confirming that reasonable inquiries have been made about an applicant's financial situation, requirements and objectives for the loan recites that ASIC says that, depending on the circumstances, reasonable inquiries about a customer's requirements and objectives could include inquiries about the amount of credit needed or the maximum amount of credit sought. Mr Hulbert took the view that the objective of each of the consumers in issue was that "they wanted to borrow money for the balance of the payment of the car": T, p 1011, lns 19-20. 1225 Mr Hulbert was taken to Folder 4 which contains the CBPL and Channic documents concerning Ms Muriel Dabah and Ms Estelle Harris. The CBPL Application Letter to Channic for them is dated 9 July 2010 (Tab 1). Mr Hulbert was taken to Tab 21 which contains Channic's Credit Suitability Assessment document. Mr Hulbert said that this was one of the very first loans Channic made when it started in July 2010. The Credit Suitability Assessment document is dated 9 July 2010 and signed by Mr Hulbert. The form reflects the pro forma elements of the Credit Suitability Assessment document adopted by the Board on 14 November 2010. Mr Hulbert gave evidence that the documents might have been used earlier than 14 November 2010 and that "we used various types of forms … applications and that": T, p 1012, ln 3. This exchange then occurred at T, p 1012, lns 5-8: Q: Mr Hulbert, are you sure that these forms weren't filled out much, much later than the dates they bear? A: I don't believe so. Q: You don't believe so? A: No. Q: Was it the case that you got from the Sydney firm of solicitors the policy documents and some standard forms and then sometime later when you realised that, gee, you had to have your documentation up to date, you went back and did the forms to try and make your files complete? A: I don't believe so. Q: And isn't it he case that these documents, the loan inquiry checklist, verification checklist, and the credit suitability assessment weren't done; weren't signed off by you before the contracts – the loan contracts to which they related were entered into? A: Is there a possibility? Q: No, I'm saying isn't that generally the case? A: I don't believe so. Q: Wasn't it your general practice to sign them after the contracts were entered into? A: After they were entered into? Q: Yes? A: At times they could have been, yes. [emphasis added] 1226 Mr Hulbert accepted that in the course of an interview with Ms Egan and Mr Foo on 14 May 2013, he "possibly" may have said that it was his general practice to sign documents such as the Loan Inquiry Checklist after the contract was issued: T, p 1012, lns 39-41. Mr Hulbert gave evidence that his recollection of the general practice was that "we signed them before and we signed them afterwards too". Mr Hulbert was then taken to the interview transcript of the examination of 14 May 2013 at pp 109-110 and taken to an example of a Loan Inquiry Checklist (barcoded). This exchange occurred as reflected in the examination transcript: Q: Do you recall when you completed this document? A: No. Q: Did you complete the document? A: I didn't complete the document, no. Q: Do you recall when you signed the document? A: I don't recall. Q: Would you have signed it on the date next to your signature? A: Not necessarily. Q: What could have made you sign it on a different day? A: It could have been signed after the contract's issued. Q: Was it your general practice to sign them after the contract was issued? A: Yes. Q: Just with the timing of the signing, just talking about general practice, was it that you signed them immediately after entering the loan agreement, or …? A: No. Q: Days later? A: Probably within – usually they're within the next day. Q: The next day? A: Yes. Q: That's the general practice? A: The general practice, the same day, next day, yes. [emphasis added] 1227 In the course of the interview on 14 May 2013, Mr Hulbert was then taken to an example of a Verification Checklist relating to the Dabah/Harris files. The following exchange occurred between Mr Hulbert and Ms Egan and Mr Foo at pp 110-111: Q: I'm going to show you a verification checklist [the document at Folder 4, Tab 23 relating to Ms Dabah and Ms Harris]. It's in the name of [Channic]. Is your signature on the last page? A: Yes. Q: What does it say there? A: 9 July. Q: Did you complete this document? A: No. Q: Who would have completed this document? A: One of the staff. Q: Did you read this document before you signed it? A: Not necessarily, no. Q: Was it your general practice to read verification check lists before you sign them? A: Not necessarily, no. Q: Was it your general practice to consider whether or not the verifications that the check list talks about were reasonable before you signed the document? A: These are standard format documents that'd be completed. Q: Did you turn your mind to whether or not the statements in this document were true before you sent [sign] it? A: I rely on the staff to enter the appropriate boxes. Q: And you described that before as a clerical task? A: Yes. [emphasis added] 1228 In the light of that transcript set out at [1227] of these reasons, the following exchange occurred in cross-examination at T, p 1013, lns 34-46; T, p 1014, lns 1: Q: [Do you agree that the answers in the transcript to questions about your general practice … after the contract was issued are] different to your evidence now? A: As far as did I sign? Q: After the contract was issued, yes? A: I said on some cases, yes, we did. Q: Your general practice? A: Wasn't general practice. It could be 50/50. Q: So your evidence is wrong there, is it? A: That's right. Q: Yes? A: Yes. Q: Your evidence is incorrect? A: Yes. Well, that's right, yes. [emphasis added] 1229 Mr Hulbert gave evidence that it was his belief at the time that he answered the questions asked of him by Ms Egan and Mr Foo concerning the Loan Inquiry Checklist at [1226] of these reasons that it was his general practice to sign Loan Inquiry Checklists after the contract was issued which was "only saying the general practice of a very long period": T, p 1014, lns 19-28. 1230 As to the Verification Checklist and the sequence of answers Mr Hulbert gave as set out at [1227] of these reasons, Mr Hulbert was taken to his answers that he had not completed the document but rather one of the staff had done so, and the following exchange occurred in cross-examination at T, p 1016, lns 1-33. Q: Okay, well, … your evidence today [is that], you completed the document. A: … signed the document, yes. … Q: Well, I'm asking … about the question at line 21 [of the interview transcript], "Did you complete this document?" A: Did I sign the document? Yes. Q: … the question at line 21 is "Did you complete this document?" A: And what do you mean by complete? Q: Well, you obviously understood it then because … A: I don't know what … … A: [Mr Hulbert continues his explanation of his understanding] … so we're talking about who could have created the document. When you say "completed" that's the way I'm interpreting it. Q: Mr Hulbert, this is talking about filling the document in, isn't it? A: Yes, that's right. Q: It's what you understood it to be about? A: Yes. [emphasis added] 1231 Mr Hulbert was taken back to the sequence of questions and answers set out at [1227] of these reasons concerning the Verification Checklist. He accepted that he had given the answers set out at [1227] of these reasons and the following exchange occurred in cross-examination at T, p 1017, lns 33-40: Q: And that's your answer, and that's your evidence isn't it? A: That was for this document, yes. Q: Well, it was for all the documents, wasn't it? A: No. They – they asked about this document. No, it's not all the documents. Q: So you are saying that this particular file was somehow special? A: No. This is the file that was presented to me. They didn't say every document. This is the particular file that was presented to me. [emphasis added] 1232 Mr Hulbert was then taken again to the sequence of questions and answers concerning the Loan Inquiry Checklist set out at p 109 of the interview transcript as set out at [1226] of these reasons. In that transcript, Mr Hulbert accepted that he began talking about his general practice. He also accepted that in giving the answers to questions in relation to the Verification Checklist he was also talking about his general practice: T, p 1018, lns 26-34. Mr Hulbert did not accept that it was his general practice that staff would enter the information in the "appropriate boxes" although that may have been the position "just in this case" (Dabah and Harris). Mr Hulbert accepted that he could not point to anything which would suggest to him that the documents in the particular transaction were any different to the other like documents more generally: T, p 1019, lns 1-7. Mr Hulbert did not accept that the processes were simply about ticking boxes by someone with no relevant inquiries actually being made. Mr Hulbert gave evidence that there were "other inquiries made" and "I would carry out other inquiries if need be": T, p 1019, lns 9-13. 1233 Mr Hulbert was again taken to Folder 22 which contains the policies and procedures documents and manuals for CBPL and Channic. Mr Hulbert was taken to Tab 12, the Loan Inquiry Checklist with attached Appendix 1. The checklist identifies 12 possible areas of inquiry. They include inquiring into the fixed expenses of the borrower and the variable expenses. Mr Hulbert seemed to accept at T, p 1012, lns 43-47 that he had not "actually" checked the fixed and variable expenses of the borrowers and the explanation for that was that the document is a template produced for use in connection with a number of lenders and brokers and not all things reflected in the areas of inquiry are applicable to all loans. He also added that he had adopted "a cost of living standard" as well, although he accepted that there was "no board resolution or policy document that adopts that" position: T, p 1022, lns 1-5. 1234 The proposition was put to Mr Hulbert that no verification of financial information had been undertaken by CBPL. He gave this evidence: "There were certain checks carried out. They carried out the income, and a certain amount of expenses and fixed loans etc". This exchange then occurred: Q: You didn't use it at all, did you? A: We did use it. If you want me to say there were certain deficiencies in the way we filled out some of these documents, yes. If you want me to run through every document we've ever done, you can. [emphasis added] 1235 Mr Hulbert accepted that he did not necessarily check the references given by the applicant borrowers. He said that those references were required for other purposes later on. 1236 As to rental statements, Mr Hulbert said that it was "very hard to get [them] from Yarrabah". Mr Hulbert accepted that he did not ask for copies of utility statements. 1237 Mr Hulbert gave evidence that he did not use "all the checklist". Mr Hulbert said that "we relied on a lot that came from Cash Brokers". Mr Hulbert accepted that he was saying that Cash Brokers was verifying the information as far as he was aware. As to the expenses, Mr Hulbert reasserted his evidence that he did not verify expenses which were "built into the cost of living". He accepted that the way of verifying income was to obtain Centrelink statements or wages slips: T, p 1023, lns 34-47; T, p 1024, lns 3-12. 1238 As to the interest rates, Mr Hulbert gave evidence that he spoke with Mr Humphreys about the interest rate for the loans. He accepted that there was nothing that came from CBPL to Channic to suggest that interest rates had been discussed with the borrowers. Mr Hulbert gave evidence that he pointed out the interest rate to the customer because "[he] did the loan contract" and in some cases he negotiated the interest rate with consumers. Mr Hulbert said that at Channic, the customer was told the term of the loan. Mr Hulbert asserted that he made inquiries of the customer as to the term of the loan and that they knew the length of the loan when doing the documents with him. Mr Hulbert asserted that that was not too late in the events because the consumer could still "walk out the door" or the documents could be changed if something was not suitable. 1239 The proposition was put to Mr Hulbert that he did not ask the consumers "for their requirements for the length of the loan": T, p 1025, lns 32-33. This exchange then occurred at T, p 1025, lns 35-47: Q: You say you did. A: As far as – I told them. I didn't ask them did they want the loan to run one year, two years. A lot of them gave [an] indication, "I'd like to pay it off in two years or –" etc. If the – it worked out with their affordability, I've had situations where people have had the loan approved and then they wanted the payments increased afterwards. Q: Well, I'm asking you about in your discussions with the consumers, the borrowers, you say – I'm putting it to you, you didn't ask them about their requirements as to the length of the loan. And your answer is that you didn't; is that right? A: I didn't ask them their requirements of the length of the loan? No. Q: No. Thank you. And you didn't discuss with them what interest rate they wanted to have? A: No. Q: No. A: But we offered a – we offered to them – that was our offer to them … that's what we put forward as an offer. Q: Yes? A: Which was with the 48% interest rate. [emphasis added] 1240 As to the Channic documents rather than the CBPL documents, Mr Hulbert was taken to the files in relation to Ms Kingsburra (Folder 3). 1241 Mr Hulbert accepted that as to the letter at Tab 10 which is the type of letter on all files relevant to these proceedings by which Channic affirmed that its assessment was that the loan was not unsuitable for the borrower, Mr Hulbert accepted that these letters might have been prepared by someone in the office and they might have been prepared after the contract had been completed: T, p 1027, lns 37-47. 1242 Mr Hulbert was taken again to the document at Folder 3, Tab 22, Channic's Loan Inquiry Checklist. He accepted that it might have been filled out by someone in the office rather than Mr Hulbert. Mr Hulbert accepted that in relation to all the loans before the Court, so far as Channic was concerned, Channic was not interested in identifying fixed expenses or variable expenses. 1243 Mr Hulbert accepted that even though the area of inquiry on p 2 of the Checklist, "Fixed expenses" and "Variable expenses", are both ticked on the Loan Inquiry Checklist, those matters were not "in our thoughts" because they were taken up in the standardised expenses formula used and applied by CBPL in undertaking the Preliminary Test: T, p 1028, lns 20-29. The assessment was in the CBPL Preliminary Test: T, p 1028, lns 33-36. To the extent that any "secondary check" was necessary, Mr Hulbert gave evidence that: "We would do some secondary checks if I needed to do more": T, p 1028, lns 38-39. Mr Hulbert gave evidence that no document, such as the Preliminary Test, was prepared by Channic and that Mr Hulbert "just accepted the figures that were produced as part of the assessment from Cash Brokers [the Preliminary Test]": T, p 1029, lns 9-12. 1244 Mr Hulbert was not able to identify from the Loan Inquiry Checklist whether, and if so, what, additional inquiries might have been made. Mr Hulbert also gave evidence that if inquiries had been made by Channic "we didn't then note it necessarily on the checklist": T, p 1029, lns 16-17; lns 28-30; T, p 1030, lns 18-21. 1245 As to Verification Checklist (Folder 3, Tab 23), Mr Hulbert accepted that the matters that are checked on that list are only those documents that came from CBPL: T, p 1030, lns 40-41. Mr Hulbert accepted that there is no additional matter that was undertaken "for either acquiring the information or verifying the information which appears on the verification checklist": T, p 1031, lns 3-8. Channic paid for the credit report and it was obtained and provided by CBPL. Mr Hulbert says that sometimes Channic "got some documents" and if they did so "they should appear on the checklist": T, p 1031, lns 16-21. 1246 Mr Hulbert accepted that when Channic undertook its assessment, its inquiry and its verification steps, in respect of all of the borrowers the subject of these proceedings, "there's no specific consideration of additional costs in relation to owning and maintaining vehicles": T, p 1031, lns 42-45. 1247 As to Channic's Credit Suitability Assessment for Ms Kingsburra (Folder 3, Tab 21), Mr Hulbert accepted that he had signed the document reciting that the amount of credit regarded as "suitable" is $8,301.50 which was more than the credit sought by Ms Kingsburra by the letter from Mr Humphreys of 6 July 2010 which requested a loan of $7,290.00 and that was so because the amount of credit included a brokerage fee of $990.00 (and some costs). 1248 Mr Hulbert gave evidence that he believed that prior to his explaining the loan contract to each consumer, Mr Humphreys had already told each consumer of the brokerage fee: T, p 1034, lns 23-27. 1249 Mr Hulbert accepted that in relation to all of the loans before the Court, there was no written agreement between the borrowers and CBPL "for Cash Brokers to provide services for a fee" and that "the first time a borrower might see a reference to brokerage on any document would be the contract when they sign it": T, p 1034, lns 36-44. 1250 Mr Hulbert also accepted that none of the borrowers received an invoice for brokerage: T, p 1034, ln 45. 1251 Mr Hulbert accepted that the Credit Suitability Assessment for Ms Kingsburra, for example, recites available income per month of $3,623.49. That entry follows this statement (common to all assessments): Customer's financial situation Based on the information from our inquiries, which we have taken reasonable steps to verify and which we have reason to believe is true, we consider that the customer has available income as follows to repay the credit during the period covered by this assessment. This takes into account special circumstances (if any) listed below that we found when making our inquiries: 1252 The period covered by the Kingsburra assessment is from 6 July 2010 to 6 August 2010. Mr Hulbert accepted that the "available income" figure of $3,623.49 did not take into account any expenses. Mr Hulbert said that he had "already taken account of their expenses in our formula … the benchmark we use": T, p 1036, lns 1-7. Mr Hulbert accepted that apart from Ms Kingsburra's matter, "we picked up the figure off the preliminary test [that] was the income": T, p 1036, lns 37-38. Mr Hulbert said that he believed, at the time, that this income figure "had to go in the document". Mr Hulbert accepted that on p 2 of the assessment, he recites the amount of credit ($8,301.50), the timeframe for which credit is required (110 weeks), the purpose of the loan (purchase of vehicle), particular product features of the loan (which simply recites "Daily Reducible") and that these matters conclude with this observation: "We further concluded that the customer understands any costs or additional risks associated with any product features specified above". The proposition was put to Mr Hulbert that at this point the customer had not been told of "any features of the loan" and Mr Hulbert responded: "I believe they were told about the brokerage": T, p 1037, lns 18-23. This exchange then occurred at T, p 1037, lns 36-46; T, p 1038, lns 1-2: Q: How do you know the customer understands these risks or additional costs? A: That's like saying – do I believe the customer understands the loan. Q: I see. A: That's – unless the customer comes back to me after I've said things to them and needs more explanation, we would think that they would understand. Q: Okay. Now, but I want to put to you, the same process by Channic of filling in the documents was adopted in every case before the Court where Channic filled in these forms? A: Channic or someone from Channic, yes. Q: Someone from Channic, yes? A: Yes. Q: Yes, and you were provided with them regularly by people who filled them out and you signed them off? A: Yes. [emphasis added] 1253 As to the Credit Contract, Mr Hulbert did not accept that the process he adopted was one of trying to get the consumers to sign up the contract "as fast as possible" and nor did he accept that he simply pointed to the bottom of the page and told the consumers to "just initial here, initial there, sign here, sign there". Mr Hulbert was taken to the explanation he gave to the Court of the process he went through in explaining the contract and securing the execution of it. He was taken to his evidence that he explained the contract first and then went to the signing process. Mr Hulbert was asked whether he was "sure about that" sequence and he answered: "I'm not 100 per cent sure. That's the best of my recollection … I can't remember every contract": T, p 1039, lns 15-18. Mr Hulbert added this at T, p 1039, lns 21-29: My recollection is as I've told his Honour. Sometimes we would have some variance and explain it to the customer on a page by page basis and they initial and sign that – that did happen sometimes. But the customers always had the figures and everything … as I explained all the features, pointed out to them. [emphasis added] 1254 Mr Hulbert accepted that he had told ASIC examiners on 13 May 2013 that the point at which the customers signed and initialled the contract was as Mr Hulbert was going through the contract. Mr Hulbert said this at T, p 1039, lns 33-34: "Sometimes we do that. I said that then. I said sometimes we do it that way, sometimes we explain it. It wasn't always 100 per cent one way". 1255 As to the signing process, Mr Hulbert accepted that earlier in his evidence he had said that he explained the contract to the consumer/borrower and then they "got into this mode of initialling and signing" and it "wasn't a matter of me explaining and then initialling". He explained that he took the consumer(s) through the whole document and then asked whether they needed any further explanation. Mr Hulbert also accepted that he had told the examiners that the signing and initialling of the contract occurred "as we are going" and that in response to the question by the examiners, "So after you explain a page, they sign it?", he answered: "Yes, of course". Mr Hulbert gave evidence that he had made an error (T, p 1040, lns 30-31) in giving his earlier oral evidence in these proceedings because: "There [were] situations like that [explaining and signing as you go] and there [were] situations where we went through the contract and then went back and signed and initialled [it] … But one way or another, the customer was explained the contract": T, p 1039, lns 36-45. As to the PAMD Act documents, Mr Hulbert put it this way: "You show them the document, explain, sign. Turn the next page, explain, sign. Next page, explain, sign: T, p 1040, lns 37-38. 1256 The proposition was put to Mr Hulbert that the consumers in these proceedings had a limited ability to understand the legal terminology of the Credit Contracts. Mr Hulbert gave evidence that none of them had said that they did not understand the contract. He recognised, again, that the contract is a complex document and added this: "I believe that most of them didn't even want to listen but we still went through the process": T, p 1041, lns 24-25. This exchange then occurred at T, p 104, lns 30-43: Q: You didn't believe that you had an obligation to tell them [explain the contract], did you? A: I'm not sure. I'm not sure of what – no … our belief. I only found out later as we've gone further into this inquiry. It wasn't my belief at the time. Q: Exactly? … A: I mean, the thinking at the time is that you would explain this because our upbringing sort of through the car yards was whenever you presented a car contract to a customer, you explained and pointed out to the customer. So the same which had been going on for years, so the same process was there for the loan contract. [emphasis added] 1257 Mr Hulbert also said this at T, p 1042, lns 17-19: "I don't say that people understand the contract. I've never said that". Mr Hulbert accepted that for the people of Yarrabah the contract "would be complex": T, p 1044, lns 7-9. Mr Hulbert gave evidence that if any consumer wanted to sit down "in the corner" with the contract and read it, he or she was "quite welcome" to do so. Mr Hulbert accepted that the chances of any one of the borrowers in this case sitting down in a corner and reading the contract were minimal although he thought this was the case "with every customer" and "very few of them – kind of have – sat down and read the contracts, even when they've had an opportunity": T, p 1050, lns 28-35. 1258 Mr Hulbert accepted that he had a "standard spiel" about the contract but said that he explained "every page as we go": T, p 1044, lns 23-24; ln 8. Mr Hulbert also accepted that he did not explain to the borrower that the loan contract operated as a "mortgage. He accepted that the mortgage was the substance of Channic's security": T, p 1044, lns 31-36. 1259 As to interest, Mr Hulbert gave evidence that sometimes he "would point to it and say, 'this is the amount of interest you're paying' with my finger right beside it. Yes … In some cases": T, p 1045, lns 15-16. Mr Hulbert did not accept that the borrowers relevant to these proceedings were of "limited education" or that it was "obvious" that they were of "very limited education and experience". Mr Hulbert regarded them as having about the "same standard" of education as him although he accepted that they "would probably have less commercial experience" than him: T, p 1047, lns 4-5; lns 13-17. Mr Hulbert did not accept that it was apparent to him that these consumers were easily confused or that he had "shut his eyes to their circumstances". Nor did he accept that they did not understand that security had been taken over the car (although they might not have understood the notion of a mortgage) and that they had a loan and interest to pay: T, p 1047, lns 25-27. 1260 Mr Hulbert accepted that the Yarrabah consumers who gave evidence in the proceedings were people who would "tend to agree" with most of what was put to them although Mr Hulbert thought this was "fairly common" with all customers. Mr Hulbert accepted that the Yarrabah consumers "required" a car but were not "desperate" for a car. As to whether the Yarrabah consumers exhibited a "preparedness" to simply take the car that Mr Hulbert or Mr Humphreys told them "they were to take and at the price" nominated, Mr Hulbert gave evidence that "an offer" was put to the consumer and it was "up to them to accept the offer or not": T, p 1049, lns 27-28. 1261 Mr Hulbert accepted that "in some cases" the car sold to a particular consumer was "above the market price", although not generally so. Mr Hulbert did not accept that some of the cars, in terms of kilometres travelled, had exceeded their useful life. Mr Hulbert accepted that in some cases the car "broke down even before the customer got it home" (T, p 1049, lns 39-40) although "any problems" a customer had, whether within or outside the warranty period, "were fixed", according to Mr Hulbert: T, p 1049, ln 44. The following exchange then occurred at T, p 1049, lns 46-47; T, p 1050, lns 1-19: Q: Mr Hulbert, it doesn't matter whether you've fixed it or not. The fact that the car sold doesn't make it to the customer's home really is a matter that indicates the car was defective when sold? A: It's not the case at all. Because you've got to remember when we got these cars roadworthied they were only driven maybe one or two blocks around in Cairns. They weren't taken out on the highway and driven for 30/40 minutes. Q: I see. So the car was okay if you drove it five minutes around town … but not if you took it on the highway? A: No. Well I would say … a different problem could come up when subjected to high-speed motoring and things like that … which we didn't get the opportunity to carry out on the vehicle. Q: You're saying – the person who provided you with roadworthy certificates wasn't capable of certifying a vehicle which would travel along highways at high speed? A: Well, – it's not the general way they do the roadworthies. It's – they take it for a test drive. But … their test drive is not involving a 30 minute drive down the highway. [emphasis added] 1262 As to the loan repayments, Mr Hulbert gave evidence that he calculated the repayments although "that was all generated by the computer". Mr Hulbert emphatically did not accept that he had largely recouped his costs through the receipt of the deposit or that with a few payments received from the borrower, he was "well ahead". Mr Hulbert accepted that in addition to the deposit and the loan repayments, he also received through CBPL a brokerage fee. As to the continuing obligation of the borrower to pay each repayment instalment notwithstanding repossession of the vehicle, Mr Hulbert gave evidence that Channic, in those circumstances, "wrote the loans off" and "didn't pursue them": T, p 1052, lns 12-15. 1263 As to the rate of interest at 48%, Mr Hulbert did not accept that a rate of 48% was not necessary to run his business profitably: T, p 1052, lns 17-19. 1264 Mr Hulbert gave evidence that apart from his cost of acquisition of each car and the cost of repairs, he incurred overheads attributable to "each car" sold to a consumer relevant to these proceedings. Those overheads included the costs of operating the car yard and all its overheads such as rent, wages, licensing fees and other things (which Mr Hulbert described as about 40 different items) and the costs payable to independent workshops which purchased parts during the course of undertaking repairs: T, p 1052, lns 34-39. Mr Hulbert says that some of these workshop costs were not necessarily applied to the costs of the car: T, p 1052, ln 41. Mr Hulbert accepted that he had not put on any expert knowledge of all of these distributed costs and added this at T, p 1053, lns 13-19: I'm aware what my overheads are, what we're spending on vehicles, but not all costs were attributed directly to the car when the workshop is spending money on repairs as well. 1265 Mr Hulbert accepted that "we", which must be a reference to Channic and Supercheap (and presumably CBPL where relevant), would accept applications from people on Centrelink payments, single parents, people with a bad credit history and ex-bankrupts (T, p 1054, lns 5-12) and that accepting applications from people in such circumstances was consistent with his advertising. Mr Hulbert, however, said that that advertising "didn't really work" and that "you will find only one person … responded to that form of advertising" with the result that "[o]verall, we didn't get much reply": T, p 1054, lns 14-17. PART 21: THE EVIDENCE OF MR KEVIN FOO 1266 Mr Foo was employed as a Senior Investigator by ASIC. He is a relevantly authorised delegate of ASIC under the ASIC Act. His functions and powers include functions and powers delegated to him under Part 3 of the ASIC Act and the NCCP Act which relate to ASIC's investigation and information gathering powers. He explains in his affidavit affirmed on 31 July 2014 the litigation support system ("Ringtail") used by ASIC to register, store and track documents. He explains that ASIC maintains a database of documents (the "Ringtail database") in relation to documents produced or obtained arising out of the investigation that led to these proceedings. He describes the method of classifying or attributing discrete individual catalogue numbers or codes to each stored document. Unique identifiers are placed on each page of a document produced pursuant to notices issued by ASIC or documents voluntarily supplied to ASIC in relation to matters relevant to the consumers in these proceedings in their engagement with any of Supercheap, CBPL and Channic or third parties. Mr Foo then explains the various sources of classes of documents produced to ASIC whether pursuant to notices issued to Supercheap, CBPL and Channic; whether pursuant to notices issued to financial institutions operating accounts for consumers relevant to these proceedings; documents voluntarily produced to ASIC; or documents otherwise relevant to the dealings between consumers relevant to these proceedings and any of Supercheap, CBPL and Channic. Mr Foo also explains the sequence of notices issued by ASIC and to whom, the responses to them and other steps taken by ASIC. 1267 It is not necessary to set out in these reasons those matters. I accept the evidence of Mr Foo and accept that each document produced was catalogued in the way he describes. I accept that these documents reflect the field of documents produced by Supercheap, CBPL and Channic to ASIC pursuant to the notices or otherwise voluntarily produced to ASIC. I also accept that the documents so catalogued also reflect the field of documents produced by third parties such as the banking institutions and borrowers relevant to these proceedings. PART 22: THE EVIDENCE OF MR MICHAEL SOUTHON 1268 Mr Southon holds a Bachelor of Arts degree with Honours in Anthropology obtained in the mid-1980s and a Master of Arts in Anthropology obtained in the 1990s. Both degrees were obtained from the Australian National University ("ANU"). He is a Fellow of the Australian Anthropological Society ("FAAS"). From 2008, Mr Southon has been practising as an independent consultant anthropologist. He has worked in Queensland with the Boonthamurra People, the Pitta Pitta People, the Yirrganydji People, the Southern Barada Kapalbarra People, the Gooreng Gooreng People, the Wankamadla People, the Yulluna People and the Mitakoodi People. He has worked in Western Australia with the Gnulli People and in New South Wales with the North East Wiradjuri People. 1269 Mr Southon has produced a report as an expert tendered in evidence by ASIC. ASIC relies upon the observations of Mr Southon as expert evidence of the cultural, behavioural and historical context within which the people of Yarrabah engage with one another and persons, especially European persons, outside the Yarrabah community. 1270 The report is dated September 2014 and is annexed to his affidavit sworn 11 September 2014. Mr Southon acknowledges that he has never previously conducted research at Yarrabah although he says that in his role as Director of Research at the North Queensland Land Council from 2003 to 2008, he attended various native title claim management meetings at Yarrabah. Mr Southon has acted as an expert witness before the Federal Court in a native title claim at Yarrabah (the "Mandingalbay Yidinji #1" claim). Mr Southon acknowledges that the research in relation to that native title claim was undertaken by Professor Bruce Rigsby and because Professor Rigsby was unavailable to give evidence in that claim, Mr Southon was asked, in his absence, to present that research to the Court. 1271 As to this report, Mr Southon sets out his methodology at section 1.4 of his report. He says this: 19. This report is based upon information I gathered myself during interviews that I conducted at Yarrabah with the Borrowers and upon information contained in a PhD thesis and a number of published and unpublished reports, which are listed in the attached 'References'. Date of Interview Interviewee 19/08/2014 1. Donna Yeatman 2. Prunella Harris 3. Muriel Dabah 20/08/2014 4. Adele Kingsburra 5. Kerryn Smith 21/08/2014 6. Joan Noble 20. These interviews lasted between 45 minutes and one hour and were subsequently transcribed. At certain points in this report I have quoted verbatim from these interviews where I thought it was useful to do so. 21. Before conducting the interviews for this report, I spent about a week reading relevant literature and designing interview questions based on that literature and on the loan documents pertaining to one of the Borrowers, Adele Kingsburra, provided to me with my terms of reference. 1272 Mr Southon was asked to address these seven questions: 1. Please provide a brief anthropological history of the Yarrabah Aboriginal Community. 2. Please detail the current social, socio-economic, cultural and language features of Yarrabah Aboriginal Community with particular regard to the manner in which members of that community interact with the wider community in relation to commercial dealings. Please compare or contrast such findings with members of remote indigenous communities of generally the same nature as the Yarrabah Aboriginal Community. 3. What, if any, historical, social socio-economic, cultural or language factors affect the ability or willingness of the residents of the Yarrabah Aboriginal Community to understand the nature, terms, advantages and disadvantages of: 3.1. transactions; 3.2. credit arrangements generally; 3.3. the specific credit arrangement provided under the Channic Credit Contract or similar facilities; 3.4. the specific brokerage arrangement provided by Cash Brokers or similar arrangements; 3.5. question or negotiate the terms of transactions (including credit arrangements) with persons from outside the Yarrabah community and/or persons who are not Aboriginal; 3.6. complain about the terms of transactions (including credit arrangements) with persons from outside the Yarrabah community and/or persons who are not Aboriginal; and 3.7. detail or explain personal or household expenses to persons from outside the Yarrabah community and/or persons who are not Aboriginal. 4. What, if any, historical, social, socio-economic, cultural or language factors affect the ability or willingness of Aboriginal residents of Yarrabah to protect themselves in relation to the acquisition of a motor vehicle and, in particular, in relation to ascertaining the condition of the motor vehicle and the terms and conditions upon which they might purchase the vehicle? 5. What, if any, historical, social, socio-economic, cultural or language factors affect the ability or willingness of Aboriginal residents of Yarrabah to make payments under the specific credit arrangement provided under the Channic Credit Contract or similar facilities? 6. What, if any, historical, social, socio-economic, cultural or language factors affect the need for Aboriginal residents of Yarrabah to own or have access to a motor vehicle. In answering the above questions, you are requested to consider and report on: (a) the language/s spoken in Yarrabah, including, if relevant, dialects; (b) the impact, if any, of kinship obligations; (c) whether gender has any particular impact on your answers, given the gender of Mr Hulbert, Mr Humphreys and Mr McKenzie; (d) whether age has any particular impact on your answers, given the ages of Mr Hulbert, Mr Humphreys and Mr McKenzie; and (e) whether there are any factors that may cause borrowers to agree when questioned above understanding of transactions[;] (f) the impact, if any, of cultural obligations on Yarrabah residents' understanding of, and use of money. 7. Based on your interviews with the Borrowers residing in Yarrabah who are named in paragraphs 13.1 to 13.8 above, were they affected by any of the factors identified by you in response to question 3[?] As to Question 1 – an anthropological overview 1273 An Aboriginal Reserve was established at Cape Grafton in 1891 by Rev. John Gribble. A new settlement of 50,000 acres was called Bellenden Ker Mission. Rev. Gribble died in 1893 and his son took over the running of the Mission and renamed it "Yarrabah" after the Gunggandji "Eyerraba", meaning "place of meeting". By 1895, 112 people were living on the Mission. The newly founded Mission was given impetus by the enactment of the Aborigines Protection and Restriction of the Sale of Opium Act 1897 (Qld) which sought to isolate Aboriginal people from contact with other races and prevent the sale of opium to them. Yarrabah became the third and largest of the "Reserves" operating under the 1897 Act. Under the 1897 Act, Aborigines were removed from traditional lands and relocated into Missions. Between 1914 and 1923 there were 351 new arrivals at Yarrabah and 139 between 1924 and 1938. By 1934, the population was 460. The regime of administration (by the Church) was harsh. Traditional practices were prohibited, including the speaking of Aboriginal languages. The Mission was plagued by financial difficulties. Food was scarce. The management of the Mission was described as "woeful" by the Chief Protector of Aboriginals in 1910. The 1897 Act strictly regulated the conditions on which Aboriginal people could be employed by Europeans (setting rates of pay, requirements for clothing, etc). The 1897 Act was repealed by the Aborigines Preservation and Protection Act 1939 (Qld). The administrative arrangements under the new Act remained in place although the "Chief Protector" became the "Director of Native Affairs". Aboriginal people continued to be removed to Missions and no Aboriginal person could leave a Mission without the permission of an Authorised Officer. Aboriginal people on a Mission needed the permission of the District Officer to marry. Mission Superintendents could prohibit "native" customs. Residents on a Mission could be ordered to undertake up to 32 hours of work a week without payment and administrators controlled the bank accounts of Aborigines. The Yarrabah Mission, on a day to day basis, was run by the Australian Board of Missions. 1274 However, the war years changed things to a degree. Men and women from Yarrabah worked outside the Mission in jobs otherwise filled by Europeans who were on active service. This gave Yarrabah men and women greater confidence in their own abilities. The anthropological literature shows that one Yarrabah resident recalled: "When the second World War started, everything came better for us". By December 1950, the population of Yarrabah was 695. The 1950 saw significant improvement in education at Yarrabah. In the early 1950s, few children at Yarrabah had achieved an educational level beyond Grade 3. By 1956, many children were reaching Grades 5 and 6 and by 1958, Grade 7. However, conditions within Yarrabah remained largely unchanged in terms of the control Aboriginal people exercised over their own lives and over their financial affairs. For example, Child Endowment was not paid to parents (mothers) in cash. It had to be accessed as credit at the Yarrabah Store. 1275 Assimilation became the policy of the Government from the 1950s. Yarrabah People obtained greater short term employment outside the Mission. Permanent outside jobs began to be found for people from the Mission. Personal finances largely remained controlled. A labour report prepared by delegates of the Trade and Labour Council in 1957 after delegates visited Yarrabah, contains this observation: … Conditions at Yarrabah were appalling; the sanitation was not good, a lighting plant was in operation but lights were only installed in staff quarters and street lights were only in administration areas; Aboriginal homes were extremely depressing and dilapidated with neither furniture nor cooking facilities. Men had to work 32 hours a week for the right to rations, and had to work an extra eight hours above the 32 hours in order to earn five shillings and sixpence a week. Discipline was contrary to all concepts of British justice (Hume, 1989: 121). 1276 The Australian Board of Missions was urged to hand over the day to day running of the Mission to the Government. In 1960, the Queensland Government legislated to render all Missions including Yarrabah the responsibility of Government. From 1 July 1960, Yarrabah was managed and funded by Government. Health and education on the Mission became the sole responsibility of Government. Mr Southon notes the following matter at para 87 of his report: 87. The transition to government administration did not, however, result in increased autonomy for Yarrabah People who continued to live within an institutional and paternalistic framework which allowed them to exercise little power over their own lives. People still depended on the government for special funding that created employment at Yarrabah and their lives were to a large extent under the control of a European administrator, whose permission they needed in order to enter or leave the settlement (Hume, 1989: 132). As Hume observes: The Yarrabah community remains socially isolated because of these restrictions and because the only way on or off the Reserve (until 1970) was by the administration–owned boat to Cairns, or by walking across the mountain range (Hume, 1989: 132). 1277 The Aborigines' and Torres Strait Islanders' Act 1965 (Qld) established Aboriginal council and courts on Aboriginal Reserves including Yarrabah. Ultimate authority remained with the Director of Native Affairs. In 1977, the Commonwealth Government established the "Community Development Employment Project" ("CDEP"). This program was introduced to Yarrabah in July 1989. The CDEP program was designed as an alternative to unemployment benefits that enabled participants to gain experience in a range of work situations. Over the following 20 years, most adult aged residents of Yarrabah would work under this program at one time or another. In January 1979, the Commonwealth Government received a petition from the Yarrabah Community Council by which the Council sought autonomy in the management and control of their own affairs. A Commonwealth Government representative who visited Yarrabah in this context reported that: "… the people were dispirited, with no level of motivation; they saw their future as one of hopelessness, everything being under the control of somebody other than Aborigines" (Hume, 1989: 142; Southon, para 90). In 1986, the Queensland Parliament enacted legislation establishing Deeds of Grant in Trust. In October 1986, the Yarrabah Community Council became the trustee of the Yarrabah Reserve land, comprising over 15,000 hectares, including two leases previously held by the Anglican Church. 1278 Mr Southon makes these observations about the period 1986 to 2014: 1986 to 2014 92. In 2005, the Yarrabah Aboriginal Council became an "Aboriginal Shire" and acquired the legal status of a local government. 93. On 1 October 2007, the Howard Coalition Government chose Yarrabah as the first recipient of what was said to be a major housing and welfare reform agreement. 94. In July 2009 the Government ended the Community Development Employment Projects (CDEP) program at Yarrabah, resulting in 500 people being transferred to Centre Link (Robertson and Clough 2011:35). This change brought with it an expectation that Yarrabah people would henceforth find work outside Yarrabah, in the mainstream. This in turn highlighted the need for a comprehensive training program at Yarrabah as well as improved transport facilities for travel between Yarrabah and Cairns. Accordingly, in 2009 the Yarrabah Council commissioned a major feasibility study (VDM 2009) to examine the available options for improving public transport between Yarrabah and Cairns. 95. At the 2011 census Yarrabah had a total population of 2,391 persons distributed over 423 households. As to Question 2(i) – social organisation 1279 Eighty percent of the present day population of Yarrabah are descendants of Aboriginal people removed from other lands in Queensland to Yarrabah. Most people place little importance on tribal affiliations. "Kinship" relations form the basis of social organisation in Yarrabah. Residential groupings, reciprocal money-lending and methods of resolving disputes are all based on kinship. People gather in age cohorts. Yarrabah people tend to marry or have de facto relationships with other Yarrabah people. Most interpersonal partnerships are de facto relationships rather than marriages. In 2011, the total population of Yarrabah was 2,409 comprising 1,202 males and 1,207 females. Of these 2,409 people, 45% or 1,086 are below the age of 18. As to Question 2(ii) – language 1280 In the 1890s, there were three linguistic groups in the Cape Grafton area: Gungandji, Yidinji and Yirgani. By 1973, only one Yarrabah man (an old man) could speak his own language (Yidinji). The language of English although it takes two forms: Yarrabah English which is characterised by abrupt staccato sentences otherwise called "telegraphic speech style"; and Standard Australian English which is seen by Yarrabah Aboriginals as "overly verbose" with "big words" (Hume, 1989: 66). In 1989, Hume observed that "subtle differences" between the two forms of speech can create "communication difficulties" between Yarrabah English speakers and speakers of Standard Australian English although Hume also observes that "all Aborigines on Yarrabah can 'code-switch' from one to the other and usually do so when conversing with Anglo-Australians": Hume, 1989: 68; Southon, para 112. Nevertheless, barriers to understanding exist for speakers of Yarrabah English due to difficulties of comprehension of "big words" which generally results in "use of silence" to avoid a negative response which, in turn, has been labelled as "gratuitous concurrence". As to Question 2(iii) – living conditions 1281 In 1960 when the Queensland Government assumed control of the management and funding of Yarrabah, Government policy became one of centralisation of accommodation. Fifty houses were built between 1960 and 1965. All were in the main village comprising 99 houses in all. Overcrowding and living in close proximity arose. Two other factors became important: first, many members of the Yarrabah population came from diverse geographical areas; and second, the culturally diverse yet concentrated population was also close to a major urban centre, Cairns. These two factors in combination are said to give rise to "a greater risk of social dysfunction' in the Yarrabah community and a "negative impact on wellbeing" measured, according to a 1982 Wilson study, in higher death rates per 100,000 in populations reflecting the two Yarrabah factors as compared with those Aboriginal populations which do not. By December 1981, the level of violence at Yarrabah was such that the Queensland Government considered abandoning policing within the Yarrabah Reserve as 11 of 12 police officers had required hospitalisation due to violence. In February 2004, the Queensland Government introduced alcohol management restrictions at Yarrabah. However, McCalman et al (in their study) note that a 2008 study by the Australian Bureau of Statistics found that Yarrabah was ranked as Queensland's "most disadvantaged area". McCalman et al (at 2008: 6; para 131 Southon) make these observations: Despite being only 54km from Cairns, [Yarrabah] was ranked as Queensland's most disadvantaged area [and Australia's third most disadvantaged area] in a recently released report that compares the social and economic conditions (income, job status, occupation, personal qualifications, service availability and housing conditions) of local government areas across the State. 1282 McCalman et al observe that this level of disadvantage at Yarrabah seems incongruous with proximity (54km) to an urban centre, Cairns. Southon observes that proximity to an adjacent urban centre by a diverse yet aggregated and concentrated population is likely to exacerbate social dysfunction within such a community. As to Question 2(iv) – economy 1283 Hume notes that by 1986, Yarrabah was "basically a welfare economy" although some wage employment was available. In 2009, the Commonwealth abolished access to the Community Development Employment Project ("CDEP") for non-remote Aboriginal communities. In July 2009, the program at Yarrabah was brought to an end as a non-remote community. In the period 2006 to 2011, employment at Yarrabah dropped by 47% (the largest drop of any of the 13 measured communities, the next greatest drop being Fitzroy River community at 31%) and income levels dropped by 16%. By 2011, the unemployment rate at Yarrabah was 62.1% compared with a national average of 5.6%: ABS data; Southon, para 142. As to Question 2(v) – participation in the Cairns economy 1284 Yarrabah is located across the harbour, 12km from Cairns. However, it has traditionally been regarded as remote from Cairns largely because the road access completed in 1975 crosses the Murray Prior Range behind Yarrabah which has gradients of 1 in 5, the steepest authorised gradient for a public road. By the mid-1980s, residents were making frequent trips to Gordonvale, Edmonton and Cairns, mainly for social purposes rather than work. Transport options were by bus; being driven by friends or relatives; or taxi. In 2009, the CDEP program was replaced with the "Yarrabah Transition to Employment Services Taskforce" ("Y-TEST") designed to enable Aboriginal people to enter mainstream employment. Aboriginal people were reluctant to embrace the new model involving transport to Cairns. In 2011, the bus service to Cairns was increased to twice daily from three times a week. By 2014, there was no regular bus service and the only transport options for Yarrabah residents going to Gordonvale, Edmonton or Cairns were either owning a car; paying a relative $50 for the return trip when driven to Cairns; or by taxi. As to Question 2(vi) – managing money 1285 For most of the 20th century, Yarrabah people had little or no control over their own finances. The right to manage their own finances and receive unemployment benefits into their own self-managed accounts, began in the 1970s. As to Question 2(vii) – External Control and/or Autonomy 1286 For most of the history of the Yarrabah community, the community has been managed and controlled by others. Partial autonomy began in the early 1970s. Greater responsibility evolved in 1975 upon the Community Council and a broader range of responsibilities devolved from the Council in 1984. Complete control devolved in 1986. As to Question 2(viii) – relations with non-Aboriginals 1287 Mr Southon notes the observations in the Hume study that although Yarrabah people can speak Standard Australia English, they shun the use of "big words" and that use of that form of English by Yarrabah people is seen as an expression of "superiority". Mr Southon's opinion is that those who use that form of English within the Yarrabah community would be subject to the "pulling-down ethos" which in the view of Hume "pervades every aspect of community life at Yarrabah" (Hume, 1989: 71; Southon, para 163). As to Question 3(i) – transactions 1288 Mr Southon explains that Yarrabah people engage in a range of retail transactions at the Yarrabah Store, supermarkets and retail outlets in Cairns. Mr Southon observes that it was only in the 1970s that Yarrabah people began to manage their own financial affairs and therefore the capacity of that generation to learn and pass on money management skills is very shallow-rooted. One historical feature of the Yarrabah economy is the practice of "book-up". This is a system of "store credit" by which (generally) small traders extend small amounts of short-term credit to customers. It is said to be a common practice "prevalent" in regional and remote Australia "overwhelmingly" associated with Aboriginal people. It is said to be a feature of the Yarrabah economy. It tends to bind a customer in the longer term to those traders offering "book-up". It sometimes involves access to a customer's debit card (and pin number) or the cashing of benefit cheques (although payments in more recent times have been by direct electronic deposit to a recipient's account). It represents a form of credit. It smooths short-term cash flow problems. It is said not to be conducive to developing real money management skills because it cedes control over an Aboriginal person's finances to the trader. It developed in Yarrabah throughout the 1980s. At that time, benefit cheques were paid fortnightly and tended to be cashed and used to reduce "book-up" debts. Taxi drivers were common providers of the book-up service. Mr Southon expresses this opinion at para 176: 176. It is my opinion, … that Yarrabah people have a limited ability to understand economic transactions and that this is due principally to (i) the fact that a cash economy has only existed at Yarrabah since the 1970s; (ii) the geographic and economic isolation of Yarrabah, until recent times, from the outside world means that Yarrabah people have a limited understanding of the economic system of the mainstream economy; (iii) the practice of "book-up", which has been prevalent at Yarrabah for decades, has inhibited the development of personal money management skills. 1289 Mr Southon notes that more recently Yarrabah people have gained experience of credit transactions through the "No Interest Loan Scheme" which forms part of the "Yarrabah and Palm Island Money Management Program" operated, since 2008, by the Indigenous Consumer Affairs Network ("ICAN"). In the 2009/2010 financial year, 67 individual loans were made to Yarrabah and Palm Island residents representing a total loan value of $56,160.00. In the six months from July to December 2010, 70 loans were made representing a total loan value of $60,976.00. However, all of these loans were interest-free. Mr Southon expresses these further opinions at paras 184, 186 and 187: 184. It is my opinion, … that Yarrabah people have a limited ability to understand the nature, terms, advantages and disadvantages of credit arrangements generally and that this is due principally to the fact that the only form of credit that has been traditionally available at Yarrabah (book-up) does not involve the payment of interest. My opinion in this regard is consistent with an observation made in a recent report (Loban 2010: 20) which notes that Yarrabah people entering into credit arrangements commonly do not understand the full extent of their liability or their obligations under the agreement. 186. The only form of credit that has traditionally been available in the Yarrabah community is "book-up" and as already noted, there is no interest payable in "book-up". To the extent that "book-up" formed the basis of Yarrabah people's understanding of credit arrangements, that practice ("book-up") would not have given the Borrowers a prior understanding of the interest component of the loan that they took out with Channic Pty Ltd. 187. It is my opinion, for the same reasons outlined in my responses to the two previous questions, that Yarrabah people would have difficulty fully understanding the terms and conditions of the Channic Credit Contract. 1290 Mr Southon considers that since "book-up" does not involve the payment of interest or the payment of a "brokerage" fee, the practice of book-up as a credit method would not have been of any assistance to Yarrabah people in understanding a "fee" for obtaining or assisting someone to obtain a loan to buy a car. Mr Southon says that although Yarrabah people might have obtained "very small loans" for such things as white goods, they would not have been accessing "mainstream loan packages". In Mr Southon's opinion, those Yarrabah persons familiar with a form of book-up credit would "not necessarily understand the specific brokerage arrangements provided by [CBPL]": para 193. As to Question 3(v) – Negotiating the terms of transactions with persons outside the Yarrabah community 1291 For all of the historical and cultural reasons identified by Mr Southon in his report at paras 194 to 208 (and earlier observations as mentioned in these reasons), Mr Southon believes that Yarrabah people, would not be well placed to question or negotiate the terms of transactions with outsiders and non-Aboriginal persons: para 199. This arises, put simply, due to issues of "social distance" between Yarrabah Aboriginal people and European outsiders and factors of gender, age and language. Mr Southon observes that the borrowers were predominantly Aboriginal women dealing with European males. He observes that the credit contracts with Channic were "complex and technical". Mr Southon believes that an inability to understand technical words or concepts concerning the loan contracts, coupled with an unwillingness on the part of Yarrabah people to appear to be ignorant, could "well prevent Yarrabah people from fully understanding the terms and conditions of a loan contract". He sets out his opinion and the five relevant factors informing it at para 208. 1292 Mr Southon also holds the view that these considerations would "make it difficult for Yarrabah people to complain about a specific transaction". He also believes that Yarrabah people have had limited experience in explaining the details of household expenditure to outsiders largely because historically low incomes have made it difficult to obtain loans or mainstream credit facilities and thus they have not had to explain patterns of expenditure, commitments, savings etc. As to Question 4 – what factors affect the ability or willingness of Aboriginal residents of Yarrabah to protect themselves in acquiring a motor vehicle? 1293 Mr Southon expresses the view that having regard to the historical circumstances relating to the late evolution of a cash economy at Yarrabah, Yarrabah people have little ability to protect themselves in negotiations for the acquisition of a motor vehicle largely because the historical factors "have prevented the development of a consumer culture and notions of consumer rights": para 223. As to Question 6 – the need for Aboriginal residents of Yarrabah to own or have access to a motor vehicle 1294 Each of the consumers has given evidence of their reasons for buying a motor vehicle. The context, however, is said to be that the abolition of the CDEP program in Yarrabah in July 2009 meant that many residents would need to access Cairns. Four hundred people were thought to be affected by the change. They would be seeking employment outside Yarrabah. A feasibility study suggested that demand for transport between Yarrabah and Cairns would be 1,196 trips per day and 400 trips each day of the weekend. In the course of the interviews with Mr Southon, each interviewee explained their reasons for travelling outside Cairns and their need for a car or access to a car. 1295 Each of the available consumers relevant to these proceedings has, however, given direct evidence of these matters. As to Question 7 – how were the borrowers relevant to these proceedings affected by the factors described by Mr Southon in response to the considerations at Question 3? 1296 Mr Southon, in his report, reflects upon his impressions of the answers that a number of the borrowers gave him when he asked them questions about their recollections of their dealings with Channic and Mr Hulbert. All of these matters, however, are the subject of direct tested evidence in the proceedings and I am not assisted by Mr Southon's view about responses of interviewees to his questions or his assessment of their dealings with any of Supercheap, Channic or CBPL. 1297 As to the engagement of the borrowers with non-Aboriginal people outside Yarrabah, Mr Southon notes that six of the borrowers spent periods of time outside Yarrabah and four of them did so for some years: Donna Yeatman (18 years), Prunella Harris (4 or 5 years), Adele Kingsburra (3 years) and Kerryn Smith (2 years at Boarding School). Mr Southon expresses the opinion that notwithstanding these living experiences outside Yarrabah, these experiences "may not necessarily have given these particular Borrowers a greater degree of confidence" in dealing with non-Aboriginal people because, in these periods, they "may have been largely within the ambit of an Aboriginal social world": para 278. 1298 Nevertheless, again, these matters are the subject of evidence in the proceeding. 1299 As to language issues, Mr Southon considers that some of the borrowers had sufficiently good English language skills "to be able to read and understand the [Credit Contract], but others did not". Leaving aside the question of whether each borrower was given an opportunity to read the contract, Mr Southon considers that a question arises of whether those borrowers who spoke in Yarrabah English were capable of being properly understood as to their responses, demeanour and meaning when engaging with non-Aboriginal people. 1300 Again, the Court has had the benefit of seeing and hearing the available borrowers answer questions. 1301 Mr Southon also expresses views about the unlikely disposition of borrowers to complain and their disposition to avoid confrontation. 1302 The Court has had the benefit of seeing and hearing each of the borrower witnesses. 1303 Mr Southon gave oral evidence in chief in support of his report and was extensively cross-examined by Dr Spence. I have had regard to all of his oral evidence. I have admitted Mr Southon's affidavit and report. I am assisted by his opinions in relation to aspects of the historical anthropological evolution of behavioural patterns within the Yarrabah community and aspects of his evidence about cultural and behavioural patterns of engagement both within in the Yarrabah community and as between members of the community and outsiders. However, I regard these matters as contextual rather than probative of any of the matters in issues in each transaction as between each borrower and any of Supercheap, Channic, CBPL, Mr Humphreys and Mr Hulbert. PART 23: THE EVIDENCE OF MS TEGAN GREEN 1304 Ms Green is a witness called by the respondent. Ms Green gave the following evidence in chief by affidavit affirmed 22 September 2014 together with oral evidence. 1305 In late March 2010, Ms Green was involved in a motor vehicle accident which resulted in her insurer treating the vehicle as being "written off". That vehicle was the subject of a loan provided by Motor Wizard Finance. On 21 July 2010, Ms Green was attending a Centrelink office adjacent to Supercheap's car yard at 484 Mulgrave Road, Earlville. She went to the car yard to look at the vehicles. She spoke with a salesman. She cannot recall his name. She said she wished to purchase a vehicle on credit. She saw a Holden Commodore Sedan. She decided to buy the vehicle. The salesman told her that the price was "around $8,000" and that the deposit would be "$4,000": T, p 1086, lns 19-21. Ms Green says that she needed the car to transport her children. Although the evidence is not entirely clear, Ms Green either had three or four children at the time she was dealing with Supercheap concerning the purchase. At the time, she understood notions about credit and understood that she would need to obtain a loan and pay it off together with interest. At the time of the transaction, she was obtaining a single parenting Centrelink benefit together with supporting children benefits as well: T, p 1099, ln 15. She had no other income except her Centrelink payments: T, p 1086, ln 11; lns 19-21; ln 29; lns 34-35. 1306 Ms Green says that she did not have $4,000.00 by way of deposit on the occasion that she visited the car yard. She paid the salesman $2,500.00 towards the deposit. She later paid a further $1,500.00: T, p 1108, ln 46. Because Ms Green did not have the full amount of the deposit, she required some of her family members to "chip in" towards the balance of the deposit: T, p 1098, lns 42-46. The salesman spoke to her about her personal expenses. At para 6 of her affidavit, she says that, at that time, she had a loan with "Better Loans and Finance". She says that she was paying off that loan at the rate of $222.00 per week: para 6. She essentially confirmed the weekly repayment rate at T, p 1086, ln 26 ($220.00 per week). The loan was a "personal finance loan" which Ms Green needed to enable her son to travel to football. She says she told the salesman about that commitment. She gave evidence that the repayments on the loan were, at this time, "almost finished". Ms Green says that she told the salesman that her income was confined to a fortnightly Centrelink payment. He told her to return when she had the balance of the deposit and to "bring documents" concerning her "income and expenses". Ms Green says that she later returned, at a time prior to 5 August 2010, paid the balance of the deposit and provided Supercheap with a Centrelink statement and a bank statement. 1307 Folder 17 of the ASIC Court Book is the folder which contains the documents in relation to Ms Green. Tab 18 contains a Centrelink statement dated 21 July 2010. The statement contains the following information: Future regular entitlements and payments Payment Type Amount Date Paid Career Allowance $106.70 27 July 2010 Parenting Payment Single $581.40 3 August 2010 Pharmaceutical Allowance $6.00 3 August 2010 Pension Basic Supplement $19.90 3 August 2010 Family Tax Benefit Part A ($625.94)* $625.94 27 July 2010 Family Tax Benefit Part B ($136.36)* $136.36 27 July 2010 Large Family Supplement ($22.12)* $22.12 27 July 2010 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 1308 The Centrelink statement contains information concerning deductions from payments to which Ms Green is entitled. The deductions are these: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Centrepay Deductions $248.00 13 July 2010 Family Tax Benefit Lump Sum Advance Repayment $25.62 13 July 2010 Parenting Payment Single Centrepay Deductions $190.00 20 July 2010 Parenting Payment Single Rent Deduction Scheme Deduction $243.00 20 July 2010 Parenting Payment Single Taxation Deduction $10.00 20 July 2010 1309 Ms Green says that on 5 August 2010, she returned to Supercheap's premises and spoke to Mr Hulbert. Mr Hulbert showed her a loan contract. At para 9 of her affidavit, Ms Green says that Mr Hulbert: … took me through all of the terms listed in the contract, including the term referred to as a cooling off period which allowed me to rescind the loan contract if I was not happy with the vehicle I wished to purchase, namely the [Holden Commodore]. [emphasis added] 1310 As to the process of engagement with Mr Hulbert in relation to the loan contract, Ms Green says this at paras 10-12: 10. On 5 August 2010 Colin Hulbert spent about an hour explaining the loan contract to me, including telling me the purchase price of the vehicle, the interest to be paid in accordance with the loan, the brokerage fee that was payable to Cash Brokers Pty Ltd, the amount of the payments, the total amount to be repaid and the date and amount of the last payment. 11. As the procedure of Colin Hulbert reading the contract to me occurred as referred to above in paragraph 10, Colin asked me if I understood each term of the contract as he explained it to me. 12. I signed a box on page 8 of the contract to acknowledge that I did not wish to seek legal advice after Colin Hulbert explained to me that I could seek legal advice if I wished to. [emphasis added] 1311 In oral evidence, Ms Green was taken by Dr Spence to the loan contract in question which is the document at Tab 14 described as Consumer Loan Contract and Mortgage No. 5049. As to the Financial Table, the Credit Contract contains this information: FINANCIAL TABLE Amount of credit of the loan $10,001.50 Annual percentage rate 48% per annum Total amount of interest payable $8,543.05 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 78 consisting of 77 repayments each of $237.80 Plus a Final Repayment of $233.95 Total amount of repayments $18,544.55 Date of first repayment 8/08/2010 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 5/08/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1312 The Comparison Rate entry is in these terms: Comparison Rate 46.4813% per annum This rate is calculated on the $10,001.50 credit amount over a 156 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1313 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 5/08/2010 Loan Draw Down Date 5/08/2010 Loan term commencing from the Draw Down Date 156 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $8,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1314 The Credit Contract is dated 5 August 2010. It is signed by Ms Green at pp 7, 8 and 21. Those pages are the execution page, the election not to seek legal advice and the direct debit authority, respectively. Ms Green was asked to give oral evidence about the explanations Mr Hulbert gave concerning the Credit Contract. She gave this evidence at T, p 1089, lns 44-47: We went through the first couple of pages of this loan contract. He explained to me about cooling-off periods. He explained to me about how much the percentage rate and things like that were for the actual loan, and the credit, and fees that are charged. [emphasis added] 1315 As to the Financial Table set out above, Ms Green gave evidence that Mr Hulbert mentioned a number of things about that table. She said this at T, p 1090, lns 7-11: [He explained the] amount of credit on the loan, the annual percentage rate, the total amount of interest payable, the interest free period, the repayments, total number of repayments consisting of 77 repayments for each plus a final repayment of, total amount of repayments, date of first repayment, frequency of repayment, credit fees and charges retained by [Mr Hulbert] and disclosure date. 1316 As to the interest rate, Ms Green gave evidence in cross-examination that she understood that the interest rate was 48% and that she had been taken to it, knew how much she had to pay, was happy with that and "just appreciated the loan": T, p 1098, lns 20-30. 1317 Ms Green gave evidence that these exchanges occurred at the office at the car yard. Ms Green was sitting at a table. So too was Mr Hulbert. He was sitting directly in front of Ms Green and slightly off to one side so that both of them could see the Credit Contract. The office was a small office. Ms Green had the document in front of her as Mr Hulbert went through each one of the line items and said what they were. He was pointing to them and asking Ms Green if there was anything that she did not understand. This was mostly in relation to the repayments and the interest: Ms Green's evidence at T, p 1090, lns 13-40. 1318 Ms Green added these observations at T, p 1091, lns 4-10: But I would like to explain that [Mr Hulbert] took me through the first couple of pages of the contracts and then when we got to the general conditions, he asked me to just briefly have a look through and if there was anything that I didn't understand for me to mention it and he [would] explain it to me. And after each page I initialled it down the bottom on the right. And then he turned the page himself and I did the same thing until the pages were finished. 1319 Ms Green gave evidence that Mr Hulbert took her through the details in the schedule on p 2 including the loan establishment fee, the brokerage fee and all of the items on pp 2 and 3. Ms Green says that Mr Hulbert took her to the list of repayments on p 5 and then to p 6. Page 7 is the principal signing clause. Ms Green says that neither she nor Mr Hulbert signed that page until they had briefly looked through the rest of the general conditions of the contract. They then went back to p 7 and signed it. Ms Green says that she looked briefly at those other provisions. She says she spent approximately an hour in this process. She then signed and initialled the document. Ms Green says that Mr Hulbert asked her if she wanted to obtain legal advice before signing the contract. Ms Green did not wish to obtain legal advice. Ms Green was taken to pp 17, 18 and 19 of the Credit Contract. She said that Mr Hulbert referred to these pages. As to these pages, she said at T, p 1093, lns 1-4: We spoke about the contract, especially the – well on this part here was about the cooling off period. And just if I sign, I understand all the information that's in this contract and if I'm allowed to pull out of my contract. 1320 Ms Green gave evidence that as to the Information Statement at pp 17 to 19, the discussion was "mainly about terminating the contract": T, p 1093, lns 14-15. 1321 Ms Green says that on 5 August 2010 after signing the contract she was given the keys to the vehicle and left the car yard. She says that the repayments were always paid. On 3 January 2013, Ms Green returned to Supercheap and took out a second loan "with Supercheap Pty Ltd" to purchase a Mitsubishi Lancer vehicle. She says that she used part of the monies borrowed under this second loan to pay out the loan she had obtained to purchase the Holden Commodore: para 14. In her oral evidence in chief, Ms Green says that towards the end of 2013 she "ended up getting … refinancing" to enable her to purchase the Mitsubishi Lancer "and so the loan actually went on top of that one". The fortnightly repayments are $252.00: T, p 1130, lns 39-40. 1322 Ms Green says that she has had no mechanical difficulties with either vehicle but for a manufacturer's recall by Mitsubishi in relation to an aspect of the electrical circuitry of that vehicle. She says that she is happy with the vehicle she has purchased from Supercheap and with each of the loan contracts she entered into with Channic. 1323 Ms Green says that she was 34 years of age at the time of swearing her affidavit and thus she was 30 years of age on 5 August 2010. Ms Green says that she identifies as an Aboriginal Australian being part of a clan from Great Keppel Island. Ms Green was born in Maryborough and lived in Hervey Bay until she was aged seven. She then moved to Brisbane in about 1987. Her mother was a single parent who separated from her father when Ms Green was aged six. Ms Green attended Glenala High School at Inala and obtained a Year 12 Certificate in 1997. At the time of swearing her affidavit she was studying for a Bachelor of Education degree at James Cook University by means of a remote teaching system established for indigenous students, so as to become a Primary School Teacher. Ms Green is a trustee together with other traditional owners. In the course of her growing up, Ms Green has not lived at Yarrabah. Ms Green says that, unfortunately, she still has not been to Yarrabah although she would love to do so. She says that she does not live in any Aboriginal communities: T, p 1096, lns 36-43. 1324 Ms Green says at para 23 of her affidavit that when she entered into "the loan contracts with Supercheap Pty Ltd" she was not in a position of "lesser bargaining power" than Colin Hulbert and "nor did Colin Hulbert take advantage of my indigenous background". 1325 Ms Green also says that she has "never heard of the conduct referred to as 'book-up' said to be practised by indigenous people in remote communities". 1326 As to her loans, Ms Green accepts that she has previously had a loan from Motor Wizard Finance and two loans in relation to the vehicles purchased from Supercheap. She has also obtained a personal loan from one of Mr Hulbert's companies in an amount of $2,000.00 in relation to a loan document dated 15 February 2013. Ms Green says that she was unable to obtain a loan from a bank or a building society because her only source of income was a single parenting benefit from Centrelink. Ms Green accepted that a number of deductions were being taken out of her Centrelink payments and they included deductions in relation to telephone allowances, lump sum advances she had obtained from Centrelink, rent and tax payments. In addition to these commitments, she was also paying $222.00 per week in repayment of the Better Loans and Finance Advance: T, p 1099, ln 35. 1327 Ms Green was taken to Vol 17, Tab 9 which is a Credit Application Form signed by her and dated 21 July 2010. There seems to be some confusion about the number of occasions when Ms Green visited the Supercheap car yard. At para 7 of her affidavit, Ms Green says that she visited the car yard on 21 July 2010 and then visited it again at some time between 21 July 2010 and 5 August 2010 and then visited it again on 5 August 2010. In oral evidence, Ms Green thinks that she visited the car yard twice. The first time was when she saw the car and had a conversation with the salesman. She says that she then received a telephone call from the salesman to say it seemed that a credit check would need to be done before finance could be approved. On a second occasion, Ms Green then went to the car yard which seems to have been 5 August 2010. 1328 As to the Credit Application Form, Ms Green accepts that she signed it on p 3. She says that the writing in the Financial Information box at the top of p 2 is not her handwriting. She says that the salesman asked her about her financial situation and wrote things down although it was mainly about any previous finance arrangements or the details of any current finance. Ms Green says that the salesman wrote down things on a notepad as she gave answers about her financial situation. In the Financial Information box, the answer to the question, "Do you have any known credit defaults?" is "Yes". The rent/mortgage entry is "$486 per M". Ms Green accepted that her rent was "pretty much $486 a month" because she was "in Queensland Housing". The amount for food per week has no entry at all and nor do the entries "phone/mobile, vehicle expenses, utilities, Child Support or other". As to the phone expenses, Ms Green said that she had a prepaid phone amount. Ms Green accepted that she had signed the document under a declaration by which she declared that all of the entries in the Credit Application Form were true and correct. 1329 As to the repayments for the Better Loans and Finance Loan, the entry in the Credit Application Form says that the repayments are "$222 per M". Ms Green accepted that the monthly repayment was more than $222.00 although she did not accept that the monthly repayment was four times the weekly repayment, that is, about $888.00. She thought that the monthly repayment was "only, like, $450 a month": T, p 1103, lns 12-18. However, Ms Green accepted that at para 6 of her affidavit she had said that the repayment was $222.00 per week. Nevertheless, she rather thought that she was paying $450.00 per month although she also said that the repayment figure of $222.00 per week was "correct": T, p 1103, lns 22-25. Ms Green said that she was confused and that she could not really be sure about these things "because it was three years ago". 1330 As to the utilities entry, Ms Green could not understand why it was crossed out on the Credit Application Form because she "did speak about it" with the salesman when asked about these things: T, p 1104, lns 10-14; ln 33. 1331 As to the weekly expenses relating to food and clothing for children and other expenses related to her "four children" (T, p 1104, ln 40), Ms Green accepted that there were a lot of such expenses notwithstanding that these items are also struck through and show no amounts. 1332 As to the known credit defaults, Ms Green could not recall how many known credit defaults there were at the time she signed the document. When asked whether she was asked further questions about defaults, having acknowledged that there were such defaults, Ms Green thought that that "was what the credit check was all about" and said "I'm pretty [sure] that I did talk to him [the salesman] about it": T, p 1105, ln 19. 1333 The credit report (Tab 22) shows a credit default to AGL Sales ($436.00) concerning a gas payment due on 4 May 2010 although Ms Green says she had moved out of the relevant house in November 2009; a credit default to "Mr Rentals Lutwyche" ($1,030.00) for equipment hire due on 10 December 2008; a credit default to "Credit Corp Services" ($3,715.00) due on 15 May 2008 concerning a loan contract; a credit default to "Kwik Finance Pty Ltd Aspley" ($951.00) concerning a loan contract, due on 1 October 2007; a credit default to "Better Loans & Finance" ($1,076.00) due on 21 May 2007 (although Ms Green says that the default was a technicality and she continued in the loan contract); a credit default to Telstra ($1,687.00) concerning either a home or mobile phone, due on 26 January 2006. Ms Green accepted that notwithstanding a number of credit defaults; being unemployed; entirely dependent on Centrelink benefits; supporting three children; and having no other source of income, the loan to purchase the car was approved. 1334 Ms Green believes that she went to Supercheap twice concerning the purchase of the Commodore. She says that on the second occasion she took her documents into the dealership (the Centrelink statement and, she thinks, a three month bank statement) and paid the balance of the deposit (a further $1,500.00). On this occasion, she also took the car away at the end of the visit: T, p 1108, lns 25-44; T, p 1112, ln 7. On this occasion, she also signed the loan contract (the document at Folder 17, Tab 17): T, p 1111, lns 39-44. As to the amount of credit she was seeking, it was: "Well, for the rest of the car, basically" (T, p 1109, ln 12) which was, she thought, about $4,000.00 (T, p 1109, ln 14) being the difference between the purchase price of about $8,000.00 less the total deposit of $4,000.00: T, p 1109, lns 1-3. As to the bank statement, Ms Green could not be sure whether the bank statement was provided in relation to the present loan transaction. Ms Green also gave evidence that when she gave her affidavit her recollection was: "Well, it's just vaguely, like, vaguely I can remember": T, p 1110, ln 18. As to this loan (as distinct from a later second loan of January 2013), Ms Green was not sure about what documents she took into the dealership: T, p 1126, lns 16-17. She could not remember whether she took into the dealership a bank statement in relation to this first loan: T, p 1129, lns 1-3. 1335 As to the loan contract, Ms Green gave evidence that Mr Hulbert had explained the terms of the contract including a cooling off period which enabled her to rescind the loan contract if she was not happy with the car: para 9; T, p 1089, lns 44-47; T, p 1093, lns 1-4. She thought the cooling off period was about 21 days: T, p 1112, lns 16-17. Ms Green gave evidence that she knew she was obtaining credit on the day she signed the loan with Mr Hulbert (and took the car) and she understood that she could not terminate the loan contract once she had obtained the credit: T, p 1113, lns 44-45; T, p 1114, lns 1-2; para 3, Information Statement, p 17 of the loan contract. Ms Green gave evidence that she thought a 21 day cooling off period "was part of the termination [term] of the [loan] contract" because that was how Mr Hulbert had explained it to her: T, p 1114, lns 4-9. 1336 Ms Green seems to have been confused about the source of the loan funds. Ms Green thought that the lender was "Colin's" insurer, which may have been "AHA Finance", that is, "his provider" or the source of funds to Colin: T, p 1115, lns 1-3. 1337 As to the brokerage fee of $990.00, Ms Green "thought that that was a fee that gets paid directly to Colin for brokerage". Ms Green said that she had heard of Cash Brokers and thought that the brokerage fee was a fee paid "for, like, the contract": T, p 1115, lns 20-21; ln 45. Ms Green was confused about the precise role of Cash Brokers. However, she gave evidence that she understood that Cash Brokers was the broker "doing all the paperwork and things like that" (T, p 1116, lns 12-13) to get her "the best loan possible" (T, p 1116, ln 15; lns 29-21; ln 32) and that such a broker might try to get a loan from "various people or different organisations": T, p 1116, lns 34-35. Ms Green "just thought my broker would be able to get me the finance that I wanted": T, p 1117, lns 6-7. Ms Green gave evidence that Mr Hulbert spoke to her about the brokerage when "we signed the contract" and that was when she "learnt about it" and, as to whether it had been discussed with her before then, she said: "I can't remember": T, p 1117, lns 10-18. 1338 Ms Green gave evidence that she "understood" that she was borrowing $10,000.00. She was asked to explain why she was borrowing $10,000.00 when she understood that the balance purchase price of the car (after paying a deposit of $4,000.00) was approximately $4,000.00 or possibly $5,000.00. Ms Green said that she "had to get credit" (T, p 1118, ln 20) because she "didn't have the cash to actually buy the car which was around $8,000.00": T, p 1118, lns 15-18. Although the need for credit was clear, Ms Green said she "did not know" why she was borrowing $10,000.00 to pay off $5,000.00: T, p 1118, lns 38-39. Ms Green says she knew that her total repayments would be $18,544.55 and that the amount of credit was $10,001.50. She said the amount of the repayments was due to the interest rate of 48% and added that she knew "exactly what [she] was paying back": T, p 1119, ln 25. Ms Green gave evidence that Mr Hulbert explained the first few pages of the loan contract for about "15 to 20 minutes" and "the whole thing was around approximately an hour" which involved reading the general conditions and reading the "main questions" (at pp 17-19 of the loan contract) which she said she "looked at briefly": T, p 1121, lns 6-39. The hour involved sitting with Mr Hulbert and initialling each page as she "went along" and occasionally placing her signature on particular pages. The hour also included signing other documents that day (T, p 1122, lns 20-22) of which there were "quite a few" amounting to "lots of paperwork": T, p 1122, lns 32-34. The documents included the Contract to Buy a Motor Vehicle (Tab 23). This document was also explained to Ms Green: T, p 1123, ln 6. It recites a purchase price of $12,509.00. Ms Green says that she did not look at "comparable vehicles" and "compare prices" partly because: "Well, I didn't even really know my way around" (T, p 1123, ln 38) and partly because she "didn't know much about the value of cars, really": T, p 1123, lns 40-41. Nor did Ms Green take the car for a test drive, have it independently inspected or check the mileage on the odometer. Nor did she know much about the mechanics of cars. 1339 On 24 March 2011, Channic, trading as AHA Finance, sent a letter to Ms Green confirming an arrangement of 24 March 2011 by which her repayment schedule was "adjusted" (Tab 26). The debt was then $9,088.71. The re-scheduling increased the number of payments required to pay out the loan. The new total amounted to $15,114.08 with fortnightly repayments of $270.00. Ms Green had missed a payment in the preceding December or January. 1340 On 3 January 2013, Ms Green again went to Supercheap to purchase a car. She signed another Credit Application Form. She filled out the Financial Information box on p 2. She said her rent was $265.20 per fortnight and her food expenses were $80.00 per week. Ms Green entered into a new loan contract, also on 3 January 2013, for an amount of credit of $16,260.00 at 30% interest constituting total repayments of $29,062.91 made up of $114.00 fortnightly repayments of $252.77 commencing on 7 January 2013 with a final repayment of $247.13. This loan transaction was for the purchase of a 2006 Mitsubishi Lancer. Mr Hulbert took Ms Green through this contract: T, p 1126, lns 44-47; T, p 1127, lns 10-12. At the time of this second loan, approximately $3,500.00 remained payable on the earlier loan. The second loan contract recites a payment to Channic of $3,710.00. The Commodore had been "written off" in an accident leaving a balance debt remaining. Ms Green says that in support of her second loan she gave Mr Wayne McKenzie a copy of a bank statement for the period 14 September 2012 to 13 December 2012: T, p 1130, ln 28 (Tab 55). Ms Green accepted that the pattern of income and expenditure reflected in that statement is that when the Centrelink payments came into her account, they were used up by her on all her household expenses and direct debits including the loans then in existence. For example: the balance on 4 December 2012 was $0.45c; on 5 December 2012, the balance was $162.45 and on 7 December 2012, the balance was again $0.45c; two Centrelink payments were received on 10 December 2012 and also a cash deposit ($756.98 in all); by 10 December 2012 the balance was $100.01. The direct debits giving rise to that account balance of $100.01 included the earlier Channic loan repayment; a Better Loans & Finance repayment; funeral insurance premiums; other insurance premiums. Ms Green accepted that having regard to the bank statement, she had incurred "greater expenses" than before (T, p 1131, ln 19; ln 38) and at this point in time, immediately prior to the second loan, she was "still running out of money each week": T, p 1131, lns 40-41. Ms Green cannot recall whether Mr McKenzie talked to her about this pattern of income and expense: T, p 1130, lns 30-31. Ms Green believed that she could afford the new loan repayments of $252.77: T, p 1131, lns 6-9. 1341 On 16 February 2013, about six weeks after entering into the second loan contract, Ms Green met with Mr McKenzie and sought brokerage assistance from CBPL trading as Yes Lending Solutions "Pay Day Loans and Personal Loans" for a loan of $2,000.00 to "pay bills". The new loan would be repayable fortnightly over 22 weeks commencing on 4 March 2013. The loan was obtained from Channic. A brokerage fee invoice issued for $660.00 (a brokerage fee amounting to 33% of the loan funds sought). The loan amount was $2,933.09 including brokerage ($660.00) and interest of $273.09 (at 48%) amounting to repayments of $577.73 per month: Folder 17, Tab 84. Ms Green gave evidence that she needed this loan to pay for her son's travel for football. Ms Green gave evidence that she did not have an extra $500.00 or so "left over all the time" to meet these expenses and she was "desperate" to get this additional money. She said that this was why she was willing to pay 48% interest and a brokerage fee of $660.00: T, p 1133, lns 5-16. 1342 On 30 April 2013, Ms Green made another application to CBPL, as broker, for another loan of $1,250.00 to "pay bills" with fortnightly repayments of $260.04 commencing on 13 May 2013. On this occasion, the brokerage fee was $412.50 (33% of the value of the funds sought) and the interest component was $412.50. The loan value for the new loan was $2,110.51. However, at the same time, Ms Green re-financed an earlier loan and the value of the re-financing was $1,529.61. Accordingly, the total loan value was $3,640.12 repayable over 28 weeks amounting to $563.35 per month (or approximately $130.00 per week for 28 weeks). Ms Green accepted that in order to get a certain amount in her hand she had to pay 33% more by way of brokerage and also pay interest at 48%. She also accepted that this was made necessary "because [she] couldn't afford all [her] expenses whilst [she] had the car loan": T, p 1133, lns 28-32. PART 24: THE EVIDENCE OF MR SHAYNE MULDOON AND MS FELITA SKY ECKERMANN 1343 Mr Shayne Muldoon is a witness called by the respondent. Mr Muldoon gave the following evidence by affidavit and orally. 1344 Mr Muldoon and his partner, Ms Felita Eckermann, decided to inspect vehicles offered for sale by Supercheap about a week prior to 30 August 2011 when they were walking past the dealership. The folder in the Court Book relating to Mr Muldoon is Folder 14. The CBPL file contains a Credit Application Form dated 30 August 2011 which bears Mr Muldoon's signature. The financial information box recites an amount of $1,256.00 per month as the rent/mortgage commitment. No other expenses are recorded in the Credit Application Form. There is also a Credit Application Form dated 30 August 2011 which bears the signature of Ms Eckermann. It too recites a rent/mortgage commitment of $1,256.00 per month and also an American Express commitment of $300.00 per month with the note "[paid] out today". The Credit Application Form for Mr Muldoon contains no information about his income. The form on behalf of Ms Eckermann recites income of $2,166.66 per month. 1345 The CBPL file contains a Centrelink letter dated 30 August 2011 addressed to Mr Muldoon which sets out the following information: Future regular entitlements and payments Payment Type Amount Date Paid Newstart Allowance $420.47 9 September 2011 GST Component $8.23 9 September 2011 Family Tax Benefit Part A ($493.92)* $493.92 12 September 2011 Family Tax Benefit Part B ($57.54)* $57.54 12 September 2011 Large Family Supplement ($11.34)* $11.34 12 September 2011 Rent Assistance ($154.56)* $154.56 12 September 2011 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 1346 The Centrelink statement contains information concerning deductions from payments to which Mr Muldoon is entitled. The deductions are these: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Lump Sum Advance Repayment $50.12 29 August 2011 Newstart Allowance Centrepay Deductions $50.00 26 August 2011 Newstart Allowance Lump Sum Advance Repayment $38.50 26 August 2011 Newstart Allowance Rent Deduction Scheme Deduction $19.50 26 August 2011 1347 The letter also contains this information: Previous irregular payments Payment Type Amount Date Paid Arrears – FTB(A) Supplement $2,111.39 30 August 2011 Arrears – Family Tax Benefit Part B $700.80 30 August 2011 Arrears – FTB Part B Supplement $354.05 30 August 2011 1348 On 30 August 2011, Mr Humphreys for CBPL sent an application to Channic for a loan on behalf of Mr Muldoon and Ms Eckermann by which they sought a loan for $8,490.00 (Tab 1). They sought a repayment of approximately $100.00 per week. Mr Hulbert for Channic sent a letter to CBPL on 30 August 2011 advising that a proposed credit contract was "not unsuitable for the client/s" (Tab 27). CBPL raised an invoice addressed to them for brokerage fees of $550.00. On 30 August 2011, Mr Muldoon and Ms Eckermann entered into a credit contract with Channic as Borrower/Mortgage No. 1 and Borrower/Mortgagor No. 2 respectively. 1349 The loan contract entered into by Mr Muldoon and Ms Eckermann is described as Continuing Credit Loan Contract and Mortgage No. 5211. As to the Financial Table, the Credit Contract contains this information: FINANCIAL TABLE Amount of credit of the loan $9,061.50 Annual percentage rate 48% per annum Total amount of interest payable $9,761.91 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 95 consisting of 94 repayments each of $198.21 Plus a Final Repayment of $191.67 Total amount of repayments $18,823.41 Date of first repayment 1/09/2011 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 30/08/2011 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1350 The Comparison Rate entry is in these terms: Comparison Rate 46.5298% per annum This rate is calculated on the $9,061.50 credit amount over a 190 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1351 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 30/08/2011 Loan Draw Down Date 30/08/2011 Loan term commencing from the Draw Down Date 190 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $550.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $8,490.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1352 The loan contract entered into by Mr Muldoon and Ms Eckermann was related to the purchase of a 1996 Hyundai Elantra Station Wagon. The Supercheap tax invoice of 30 August 2011 for the sale of the car reflects a total purchase price including GST of $9,990.00. However, the engine in this car "broke down within a week" and Mr Muldoon took the vehicle back to Supercheap to have the engine repaired under warranty. Supercheap was unable to repair it. Within approximately three weeks, Supercheap replaced the Hyundai vehicle with a Holden Commodore vehicle. Prior to purchasing that car, Mr Hulbert made another car available to Mr Muldoon for his use. It was a "Ford wagon". Mr Muldoon says that when he acquired the Holden Commodore, the existing loan contract was varied so as to apply to the purchase of the Commodore. 1353 Mr Muldoon says that when he and Ms Eckermann entered into the loan contract of 30 August 2011, Mr Hulbert "explained the contents of that loan contract": para 9, Mr Muldoon's affidavit sworn 24 September 2014. Mr Hulbert's explanation of the contents of the loan contract took "about an hour to an hour and a half". Mr Muldoon says that prior to entering into the loan contract, he and his partner had told Mr Hulbert that they wanted to purchase a vehicle because they had "three young children whom it was difficult to transport, particularly in the wet season": para 10. Mr Muldoon says that when Mr Hulbert undertook the process of explaining the terms of the loan contract, Mr Hulbert gave them a copy of the loan contract and "gave us an opportunity to read the loan contract, and explained in detail the contents of the financial table on page 1 of the loan contract and the schedule on pages 2 and 3, and the contents of page 4 to 7 of the loan contract": para 12. Mr Muldoon says that the explanation of the Financial Table included drawing their attention to the circumstance that part of the money borrowed by them included an amount to pay a brokerage fee to Cash Brokers. He also says that after the process of explanation of the document, Mr Hulbert advised them that they could obtain legal advice. However, Mr Muldoon says that he and his partner elected to each sign "Box B" on the form indicating that they had chosen not to obtain legal advice. Mr Muldoon also says that after the process of explanation which he describes, Mr Hulbert drew their attention to "most of the contract terms set out on pages 9 to 16, the information statement on pages 17-19 and the direct debit service agreement information on page 20". Mr Muldoon also says that prior to signing the contract, Mr Hulbert told them that they "could have time to read the contract or take it home to read it or to obtain legal advice": para 16. Mr Muldoon also says that when he entered into the loan contract concerning the Hyundai vehicle and then varied the loan so as to apply it to the purchase of the Commodore vehicle, he did so of his "own free choice, and there was no difference in bargaining power between Colin Hulbert and myself". 1354 Mr Muldoon says that there was a problem with the air conditioning in the Commodore vehicle and a very minor electrical problem with it. He says that otherwise, the vehicle performed "very well and we travelled from Cairns to Adelaide in late 2012, and returned to Cairns in August 2013": para 18. He says that he has "no complaints" about the performance of the Commodore vehicle or "with the loan contracts entered into with Channic Pty Ltd". He also says that Mr Hulbert "has been understanding and flexible to me and my partner's needs": para 19. 1355 As to the explanation of the financial aspects of the loan contract, Mr Muldoon gave evidence that Mr Hulbert "went through and broke it all down, and, I mean, I had my children with me at the time so it was a bit hard". He also said that once he had read it afterwards it was "all clear-cut anyway": T, p 1138, lns 21-25. He says that Mr Hulbert explained the brokerage fee. He put it this way: "Basically to get the loan I had to – there was a brokerage fee for the people that were lending the money to the car place to be able to give me the loan to be able to purchase the car": T, p 1138, lns 31-33. Mr Muldoon says that Mr Hulbert took him and his partner through the contents of pp 3, 4 and 5. Mr Muldoon was taken to p 8 of the contract, by Dr Spence, which contains "Box A" crossed out and "Box B" signed by Mr Muldoon and Ms Eckermann and dated 30 August 2011. Mr Muldoon says he remembers signing Box B and put it this way at T, p 1139, lns 4-7: Yes. I remember that little spot there [Box B] because they brought that to our attention pretty clearly. And, as I say, me and my partner were just really in desperate need of a car and we knew what we were getting into personally. 1356 Mr Muldoon says that he was reading the content of Box B and "it's clear cut": T, p 1139, ln 10. Mr Muldoon also said this at T, p 1139, lns 15-17: Basically, … I chose to [waive] getting legal advice, anything like that. I was quite keen with it because, as I say, we knew the wet season was impending and we needed a car for the kids. 1357 As to the 48% interest, Mr Muldoon said that his understanding was: "It's just basically like for the loan … you pay that as well as your loan": T, p 1140, lns 1-3. Mr Muldoon gave evidence that he knew he was paying 48% interest and "it was cool": T, p 1140, lns 5-6. 1358 Mr Muldoon grew up in Perth. He has lived in Cairns for about 13 years. He completed his schooling in Perth. He completed Year 10. He commenced undertaking a horticulture course. However, he had some issues with that course and did not complete it. He has never lived in Yarrabah. He is not an Aboriginal Australian and nor is Ms Eckermann. Mr Muldoon was unemployed at the time of the transaction with Supercheap, Channic and CBPL. Ms Eckermann was not working either. At that stage, Mr Muldoon and Ms Eckermann had three children. Now they have four children: T, p 1143, lns 17-43. 1359 Mr Muldoon did not write the content of his affidavit. It was written by Dr Spence: T, p 1144, lns 20-27. 1360 The affidavit was affirmed by Mr Muldoon on 24 September 2014 which, he accepted, was the first time that he had thought about the day he bought the car and added: "Even then I didn't really think too much of it back then a great deal, to be honest": T, p 1144, lns 36-37. Mr Muldoon said that he was walking past the Supercheap premises directly next to the family Centrelink office and saw "a sign out the front that said that they may be able to help in our circumstances". As to the sign, Mr Muldoon seemed to recall something along the lines of "Centrelink payments okay" and "other things like maybe bad credit and a tick or something like that": T, p 1145, lns 8-13. Mr Muldoon said that the initial transaction was completed at the Mulgrave premises and the adjustment to the new car occurred at the Spence Street premises. 1361 Mr Muldoon said that before going to Supercheap, he had not been looking at other car yards because "[t]ransportation, children, poor weather and didn't really have the ability to get around, didn't have internet, all that sort of stuff. We weren't in a very good situation in our home life": T, p 1146, lns 1-3. Mr Muldoon re-asserted that he was "desperate to get the car": T, p 1146, lns 5-8. Mr Muldoon added: "We just needed to get the kids out of being on the buses": T, p 1146, lns 10-11. Mr Muldoon gave evidence that he had not tried to obtain finance from other lenders. 1362 On the first occasion when Mr Muldoon went to Supercheap, he spoke to Mr Humphreys. He was told to obtain a Centrelink letter and he assumes that he would probably have "grabbed" a bank statement as well. 1363 As to the Credit Application Form, the writing on pp 1 and 2 is in Mr Muldoon's handwriting. He signed it on p 3. His attention was drawn to the declaration that the information was "true and correct". He says it was true and correct "at the time". The space for answering a question about "any known credit defaults" is left blank. Mr Muldoon says that he was not aware of any defaults "at that time" although, he could not be "really sure" because in the period before the initial signing of the contract there had been "so much personal drama going on in life". Mr Muldoon accepted that he "did have something outstanding" with Cash Converters and "once upon a time" he did have something with St George Bank. He accepted that somebody had delivered a letter to the house in relation to that bank loan although he had not "heard anything else about it at all": T, p 1148, lns 10-28. He says he assumed it was "already sorted": T, p 1148, ln 31. Mr Muldoon confirmed that his rent/mortgage amount per month was $1,256.00. He gave evidence that it was hard to put a price on the expenses relating to children and thus no amount is entered for that nor is any expense entered for telephone expenses or utilities or anything else. 1364 Mr Muldoon says that he was not asked any questions about why he had not put down any expenses at all apart from the rent/mortgage expense: T, p 1149, ln 15. 1365 Mr Muldoon says that his partner, Ms Eckermann, filled out the Credit Application Form in her name. It also contains an amount for rent/mortgage of $1,256.00 although that was the same amount referred to by Mr Muldoon rather than an additional amount of $1,256.00. He says that he and his partner "pooled our money together". Mr Muldoon recalls that the American Express amount was to be paid out that day. No other expenses were entered into the Financial Information table by Ms Eckermann. Mr Muldoon cannot recall whether Ms Eckermann was asked any questions about the lack of entries in the Financial Information table. He says that it was too long ago and he cannot remember that far back: T, p 1149, lns 42-47. He cannot recall whether he was asked to bring in a bank statement. Mr Muldoon's Centrelink payments were paid into Ms Eckermann's Westpac bank account. Tabs 20 and 21 of Folder 14 contain a statement of the balance at 30 August 2011 and a statement of transactions from 6 May 2011 to 30 August 2011. The withdrawal on 30 August 2011 of $2,575.00 was part payment of the deposit for the Hyundai vehicle. This amount was more than Supercheap had required because Mr Muldoon and Ms Eckermann wanted to "get the payment of the car rolling, to get things happening" because they were "absolutely", "anxious to get the car": T, p 1150, lns 37-43. 1366 As to the pattern of income and expenses reflected in the account, Mr Muldoon gave evidence that they "were pretty good generally". However, he accepted that the normal pattern was that all of their funds were "normally exhausted", "usually a day or two before" the next Centrelink payments came in and this set of circumstances or pattern was the prevailing position before they elected to take out the loan to purchase the Hyundai: T, p 1151, lns 45-46; T, p 1152, ln 1. The loan contract commitment was an amount of $198.21 each fortnight. Mr Muldoon accepted that looking at his "family budget" there did not seem to be room for an extra $200.00 per fortnight although he said that he anticipated getting back to work. However, things had not quite worked out that way. Mr Muldoon and Ms Eckermann then relocated to Adelaide. Mr Muldoon "absolutely" expected to obtain work on the docks in Adelaide. 1367 Mr Muldoon cannot remember whether anyone sat down with him and told him that an assessment had to be done of whether the finance he sought was going to be suitable for him: T, p 1153, lns 17-20. 1368 As to the loan contract, Mr Muldoon thought that Channic was the finance company for Supercheap, that is, the people Supercheap went to "to get the money for the loan for me to be able to get the car": T, p 1153, lns 43-45. Mr Muldoon gave evidence that the amount of $18,823.41 was the figure "I took as what we were paying": T, p 1154, ln 38. He thinks that that figure was probably explained to him although the contract was signed on that day and Mr Muldoon "was, sort of, all over the place with what was going on, on the whole day": T, p 1154, lns 42-43. Mr Muldoon said that he could have said "no, at any time" but he "was quite keen to just proceed no matter what" (T, p 1155, lns 5-6) and said that "that was my choice": T, p 1155, ln 8. Mr Muldoon also said that he did not "know much about interest rates at the time" although he knew 48% was "a bit high" but nevertheless he chose not to seek legal advice and added "that was my choice": T, p 1155, lns 14-15. Mr Muldoon added this at T, p 1155, lns 18-20: Well, we did [appreciate that 48% was a bit high] but we point blank really didn't care. I had three kids to think about. One was only one and that was – yes, I had no choice on my family side of things so … [emphasis added] 1369 As to the brokerage of $550.00, Mr Muldoon gave evidence that he was "pretty certain" that Mr Hulbert explained this to him but added this: "but I really just – at this point in time I can't remember, to be honest": T, p 1155, lns 44-45. Mr Muldoon also said this at T, p 1156, lns 1-6: I mean, by looking at it there [the brokerage fee of $550.00] it was clear cut. It was like, well, okay, I had to get the loan from Cash Providers sort of thing, whichever company it was. So in order for me to get the loan through them there was obviously a brokerage fee … because I'm applying for the loan, sort of thing, there had to be the $550.00 to be paid to them … in order to get the loan … 1370 Mr Muldoon also confirmed that everything happened "all on the same day" including paying the deposit, signing the documentation and taking the vehicle. Time was also spent trying to find insurance for Mr Muldoon. As to the insurance, Mr Muldoon gave evidence that "they" were having a hard time finding insurance for him because, as he put it: "I had bad insurance. I had a – had issues. Bad insurance. I couldn't get insurance for the vehicle because I was the only one driving at the time … And I had a poor driving record at that time": T, p 1159, lns 30-37. Mr Muldoon said that he was "almost uninsurable": T, p 1161, ln 35. 1371 As to the vehicle, Mr Muldoon "drove [it] around the block" before the contract was drawn up. Mr Muldoon may have noticed that the vehicle had recorded 270,000 kilometres "on the clock" although his answer is equivocal. Mr Muldoon thought that the price of the vehicle was "approximately" $10,000.00. He did not know whether that was a "suitable price for the car" and added "I wasn't too perturbed either, to be honest". Mr Muldoon accepted that "within a week or two", the Hyundai "broke down" in the sense that the "motor pretty much packed itself in": T, p 1157, lns 42-45. The Supercheap tax invoice (Tab 29) recites a net sale price for the vehicle including GST of $8,684.00. The total price including registration fees, stamp duty, comprehensive insurance at $1,000.00 and a title check fee amounted to $9,990.00. The invoice records an odometer reading of 217,048. As to the purchase price, Mr Muldoon said that there was "no negotiation" about the price of the car and that he was simply "happy to take" the figure he was given: T, p 1162, lns 1-9. 1372 Nevertheless, Mr Muldoon gave evidence that, as far as he was concerned, the Hyundai was "good enough for what it was paid for", when he initially picked it up, that day: T, p 1158, lns 8-10. 1373 Mr Muldoon gave evidence that he was told by Mr Hulbert that there was a "24 hour cooling off period" the effect of which was: "Well, I can walk away if I want to at [this] particular stage [before signing]": T, p 1159, lns 10-11. Mr Muldoon said that he signed a number of other documents that day including agreements about cooling off periods. He said that he had to sign those documents and chose to take the car. He added that that "was all on me", "as far as I was concerned". He gave evidence that Mr Hulbert "would have gone through everything". 1374 Mr Muldoon said that he was concerned when the Hyundai broke down within about a week and it could not be repaired. However, he said that he "got a really good car [the Commodore] out of it" and added that "it's still working" and "it has no problems with it". Mr Muldoon accepted that he had received a "roadworthiness certificate" for the Hyundai vehicle when purchasing it. Mr Muldoon accepted that he had experienced difficulties in repaying the loan to Channic. That arose because the anticipated job in Adelaide did not come to fruition and thus Mr Muldoon and his partner returned to Queensland. Ms Eckermann signed a PayGate direct debit form on 30 August 2011. Mr Muldoon accepted that from time to time payments had been missed because of "insufficient funds" in the account although he does not recall how many payments were missed. He accepts that in 2011 a number of payments were missed and he and his partner received letters from Mr Hulbert's companies about that. Mr Muldoon and Ms Eckermann "managed to make them up from time to time": T, p 1163, ln 32. The ledger for the loan (Tab 33) shows a dishonour fee on 18 October 2011 and a default notice fee on that date (both $25.00); a dishonour fee on 24 November 2011 of $25.00; and a direct debt letter fee of $25.00 on that same date. PART 25: THE EVIDENCE OF MS HEIDI STAFFORD 1375 Ms Heidi Stafford is a witness called by the respondent. Ms Stafford affirmed an affidavit in the proceedings on behalf of the respondent on 24 September 2014. As to that affidavit, the respondent does not press paras 17 and 18. Nor is the second part of para 20 after the word "opinion" pressed. Some broader objections are taken to aspects of Ms Stafford's affidavit on the footing that Ms Stafford purports to express opinions which are neither the opinions of an "expert" and nor are the opinions matters of observations of fact based upon any foundation of fact set out in the affidavit. I will come to those matters shortly. 1376 Ms Stafford gave the following evidence. She was born in Cairns on 18 December 1989. She lived in the Yarrabah community from then until early in 2014 when she married. Thus, she has lived in the Yarrabah community for approximately 25 years. She attended Gordonvale State High School until Year 12. She completed that schooling in 2006. Since leaving the Yarrabah community, she has resided at Woree, a suburb of Cairns. Ms Stafford says that while living within the Yarrabah community, she came to know many of its residents who were part of the Anglican Church community. Ms Stafford's father was a Pastor of the Anglican Church for approximately 20 years. He retired from that position in mid-2013 due to illness. 1377 Ms Stafford says that she also came to know "most of the residents in the Yarrabah community who were not involved with the Church": para 8, affidavit. 1378 Ms Stafford says that Yarrabah is not a remote community, in her view, because it is only 45 minutes by road from Cairns and halfway between Cairns and Yarrabah is the town of Gordonvale which has a number of facilities including a Post Office, a National Australia Bank, ATM machines, an IGA Supermarket, a petrol station and schools. She says that a lot of residents from Yarrabah travel regularly to and from Cairns to shop, visit friends, go to clubs and hotels and attend the hospital. She says that most families in Yarrabah have access to a motor vehicle and during the period mid-2010 to mid-2011, a Paradise bus service operated from Yarrabah to Cairns and back three or four times a week. Ms Stafford says that at Yarrabah between mid-2010 and mid-2011, there was a Commonwealth Bank branch, a Bendigo Bank branch, a General Store (with an ATM machine), a Library with computers for internet access, a petrol station and a fish and chip shop. Ms Stafford says that it is "common" for indigenous residents to live away from Yarrabah for a period of years before returning and one of the reasons for this phenomenon is the shortage of jobs in Yarrabah. 1379 Ms Stafford says that: "Most residents of Yarrabah have purchased modern consumer goods such as white goods, televisions, radio, cars, boats and many have computers with internet access": para 16, affidavit. 1380 Ms Stafford says that residents of Yarrabah have access to advice at the Indigenous Consumer Affairs Network ("ICAN") about "taking out loans" and "in budgeting their money": para 18, affidavit. 1381 As to engagement with persons in authority, Ms Stafford says that if she were asked a question by a "white person in authority", she would answer with her honest personal opinion. She says that, in her experience, indigenous residents in Yarrabah are "sufficiently commercially sophisticated to protect themselves against predatory lending to the same degree as "white people". This observation is the subject of objection. The nature and extent of Ms Stafford's experience of Yarrabah residents engaging in particular commercial transactions is not set out. Thus, it is impossible to understand the basis for that view unless it is simply founded upon 25 years of living within the community as an infant, a child, a young teenager and then a person from the age of 17 until approximately 25. Ms Stafford expresses views about the notion of "book up" as described by Mr Southon. Ms Stafford says this at paras 22 and 23 of her affidavit: 22. I understand the term "book-up" to mean a short term loan given informally, to be repaid on receipt of a person's next pay. 23. In my experience indigenous females living at Yarrabah are not frightened to stand up against a "white" man, and that such a notion is a very old-fashioned [one] to the point of being shocking. 1382 Again, Ms Stafford's affidavit does not identify any detailed foundation of fact as the basis of her experience of the behavioural patterns of indigenous females living at Yarrabah. I will return to an aspect of this matter in relation to Ms Stafford's oral evidence. Ms Stafford says that "Yarrabah English" is a "slang form" of English which she says is "of limited comprehensibility to 'white' people". However, she says that users of Yarrabah English are able to speak ordinary English and understand ordinary English. Ms Stafford also says that the use of Yarrabah English by residents of Yarrabah is less frequent amongst teenage people although it is "common amongst very young and quite old people". 1383 Ms Stafford says that she purchased a car from Supercheap in 2010 and took out a loan to do so. She does not describe the vehicle. She says that the vehicle had some mechanical problems. They were repaired under warranty. She has a copy of the loan contract. She says Mr Hulbert explained the contract to her when she purchased the car. She says this at paras 29 and 30 about those matters: 29. On the day that I entered the loan contract … Colin Hulbert took about an hour and a half to explain to me the terms of the loan contract and told me to read the contract and to ask him to explain any questions that I had; I cannot remember if he told me that I could seek independent legal advice, or whether he specifically told me that there was a brokerage fee payable to Cash Brokers. 30. On the day that I entered the loan contract I was accompanied by my father and mother; it is common for indigenous people from Yarrabah to be accompanied by a family member when they enter into commercial arrangements such as a loan. 1384 Apart from these matters set out in her affidavit, Ms Stafford also gave oral evidence. As mentioned earlier, Ms Stafford says in her affidavit that "most residents" of Yarrabah have purchased modern consumer goods of the kind she identifies. In oral evidence, Ms Stafford said that if someone within the Yarrabah community purchases something from Cairns, members know about it because it is a small community. She says that she sees traders like Radio Rentals and Betta Electrical that go to Yarrabah all the time, delivering goods. Ms Stafford said that, to her knowledge, there were approximately 3,000 people living in the Yarrabah community. She says that although this seems a large number, "everyone knows everyone" within an Aboriginal community like Yarrabah because "that's just a cultural thing". Ms Stafford says that her parents know everyone in the community "because that's their job", Ms Stafford's father having been a Pastor within that community. Ms Stafford says that she has "a lot of family" and most of them "are family in Yarrabah". Ms Stafford thinks that she has probably visited "20 homes or more" within the community. 1385 Ms Stafford gave evidence that the purchase price of the vehicle she bought from Supercheap was roughly $8,000.00 and that the total amount she had to pay including fees, charges, insurance and interest was something like $11,000.00: T, p 1172, lns 40-44; T, p 1173, lns 1-10. When Ms Stafford signed the loan contract, her parents were with her to help her with the contract. She discussed the contract with her parents at the time. Her parents asked her whether she wanted to go ahead with the contract and whether she could "afford it" and whether she knew "what the contract is": T, p 1173, lns 36-40. Mr Hulbert was also present. He explained the contract to Ms Stafford and her parents. She says that Mr Hulbert went through the contract with them and mentioned the cost, the repayments and "things on the contract". Ms Stafford could not recall with any precision the things Mr Hulbert talked about. However, Ms Stafford recalls Mr Hulbert talking about the repayments; the consequences of missing a payment; the additional costs associated with missing a payment; and the warranty. It took roughly half an hour. Ms Stafford had a copy of the contract in front of her as Mr Hulbert was explaining things. Ms Stafford's parents asked Mr Hulbert some questions. Insurance was obtained in Ms Stafford's father's name. Ms Stafford says that not many questions needed to be asked: T, p 1175, lns 28-37; T, p 1176, lns 23-24. Ms Stafford said that she had no problems making the repayments. At the date she entered into the contract she did not have a job. She was receiving Centrelink benefits. 1386 Ms Stafford says that most families in Yarrabah have access to a motor vehicle and that is because "most of them have jobs and they … come into Cairns and purchase cars through finance or either cash": T, p 1177, lns 15-17. 1387 Ms Stafford gave evidence that indigenous people take someone with them to help "guide" them when they are likely to be purchasing something or going through a loan transaction. She says that in relation to these sorts of transactions "we do know what we're getting ourselves into": T, p 1178, lns 5-8. Ms Stafford says that she comes from a large family and that is one of the reasons why she knows "a lot of people" and that most of the residents in Yarrabah are related to one another: T, p 1178, lns 31-32. She says that females living in Yarrabah do not let people talk down to them. She says that if something has to be said or a stand made about an issue, "then we are going to say something": T, p 1178, lns 1-2. 1388 Ms Stafford accepted that ICAN has "many, many programs to protect people in Yarrabah from unscrupulous lenders" and many programs to protect "people from buying goods on credit": T, p 1185, lns 20-25. Ms Stafford also accepted that ICAN operates those programs because "many, many Aboriginals in Yarrabah have been taken advantage of by unscrupulous lenders": T, p 1185, lns 27-29. Ms Stafford qualified her acceptance of those propositions by observing that, in Yarrabah, only particular people are unable to budget their money or properly engage with white people. However, Ms Stafford does not suggest that ICAN operates these programs "for only a few people": T, p 1185, ln 39. Ms Stafford says that there are a lot of indigenous people in Yarrabah that "use the excuse that they don't know what they're signing or getting themselves into": T, p 1186, lns 7-9. 1389 Ms Stafford was challenged by counsel for ASIC about her proposition that most of the people in Yarrabah have jobs. Ms Stafford asserted that a lot of people are employed. However, she accepted that there are a lot of people in the Yarrabah community who are unemployed. On this topic, Ms Stafford accepted that, in fact, she knew it "to be a place of high unemployment": T, p 1187, ln 7. 1390 As to the facilities in the Yarrabah community and the notion of the remoteness of that community, Ms Stafford accepted that in Yarrabah there are no retail stores apart from the supermarket; no clothing shops; no clubs; no restaurants; just one shop; not a lot of competition in terms of the shopping centre; prices in the supermarket are properly described as "really high" or "very high" and for those reasons, people choose to go to Cairns. Ms Stafford also accepted that the reason that there is not a lot of competition is that Yarrabah "is a fair way from Cairns and Gordonvale and people just don't set up businesses there": T, p 1188, lns 37-45; T, p 1189, lns 1-14. 1391 Ms Stafford also accepted that, in contradiction of her earlier evidence, the reason why people from the Yarrabah community take a family member with them when engaging in particular transactions is that "they're not confident that they can look after themselves": T, p 1189, lns 44-45. Ms Stafford qualified her acceptance of that proposition in this way at T, p 1190, lns 1-4: … it's not that they're not confident. It's that … they don't know how to talk. Some of them don't know how to talk to a white man. So they take a family member, because … there are family members there that are well educated. [emphasis added] 1392 As to the purchase of the motor vehicle, Ms Stafford accepted that before going to Supercheap she had not looked at any other place to buy a car; had not compared prices for cars; had not compared loan details concerning any other loan she might obtain; believed that no other lender would advance funds to a person on Centrelink pension benefits; believed it would be impossible to find anyone else to sell her a car on credit as she was in receipt of Centrelink benefits only; believed that Supercheap was the only place she could go to purchase a car; and accepted that when she went to Supercheap she did not have enough money for a deposit when she first went there: T, p 1190, lns 22-46. 1393 Ms Stafford recalled that she purchased the car in February 2010 and that she had to make payments over about four months commencing in October 2009 for a deposit. She recalled that she started paying about $200.00 in instalments to make up the deposit. Ms Stafford said that she wanted to buy a Holden motor vehicle and it did not matter what type of Holden. Supercheap had a Holden and she agreed to put instalments down to make up the deposit. She had agreed to purchase the car in October 2009. She was making up the deposit payments until the end of January 2010. At this stage, Ms Stafford had not seen the car; had not test driven it; did not know any details concerning the car; and did not know the price of it. At this time, she was not working. She was receiving a pension and other Centrelink benefits. 1394 Ms Stafford entered into a loan contract with Channic on 3 February 2010. The contract was a Credit Contract in relation to the purchase of a 1997 Holden Commodore VT Sedan. The details completed by Supercheap suggest that the vehicle purchase price is $9,990.00 and the full amount of the purchase price was to be financed. The loan contract recites that the amount of credit is $8,280.00. The total amount of interest charges payable is $3,275.83 resulting in a total amount of $11,577.33. The interest rate is 48%. The total number of repayments is 78 weekly payments of $150.00 commencing on 10 February 2010 and ending on 3 August 2011. The final repayment is recited as $27.33. The contract recites particular fees payable by the borrower. It recites a brokerage fee of $990.00 and payment to Supercheap of $7,290.00. The contract is signed by Ms Stafford on 3 February 2010 and signed on that date by Mr Hulbert. The document at Folder 15, Tab 8 suggests that the total deposit paid by Ms Stafford was $2,700.00. 1395 As mentioned, Ms Stafford first went to Supercheap in October 2009. On 26 October 2009, she obtained a letter from Centrelink setting out her entitlements. The letter recites these benefits: Previous regular entitlements and payments Payment Type Amount Date Paid Family Tax Benefit Part A ($156.94)* $156.94 15 Oct 2009 Family Tax Benefit Part B ($133.56)* $133.56 15 Oct 2009 Parenting Payment Single $554.90 22 Oct 2009 Pharmaceutical Allowance $6.00 22 Oct 2009 Pension Basic Supplement $19.60 22 Oct 2009 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 1396 As mentioned, the loan transaction was entered into on 3 February 2010. On 28 June 2010, Ms Stafford was notified that a payment due on 18 June 2010 by direct debit had been dishonoured. She received a letter from "AHA Finance" advising her of that matter; notifying her of a dishonour payment fee of $25.00 and a letter fee of $25.00. The letter put her on notice that she was in default under the loan contract. On 12 October 2010, Ms Stafford received another letter from AHA Finance advising her that a payment due on 8 October 2010 by direct debit had been dishonoured. That letter also notified her of a dishonour fee of $25.00 and a letter fee of $25.00. Ms Stafford accepted that she had not been able to "keep up the payments". She explained her situation to Mr Hulbert. She accepted that the reason she had not been able to keep up the payments under the loan contract was that she did not have sufficient money at the time each payment was due to make the payment. She understood that AHA Finance was one of Mr Hulbert's companies. Ms Stafford accepted that even though she was not paying very much rent because of favourable arrangements with her parents, she was nevertheless unable to keep up the loan payments: T, p 1193, lns 34-47; T, p 1194, lns 39-40. 1397 Ms Stafford filled out a Credit Application Form addressed to AHA New Start Finance (undated) for the purpose of obtaining the loan from Channic. Ms Stafford thinks that it was probably filled out in October 2009 when she started making payments towards the deposit. The application recites that Ms Stafford is a sole parent in receipt of a Centrelink pension. As to her credit history, it recites "Nil". The document recites current loans as "Nil" and previous loans as "Nil". As to defaults, the Veda credit check reveals that Ms Stafford defaulted in the payment of an amount due to Soul Communications Ltd on 27 July 2009 for a telecommunication service. The amount seems to be $1,018.00. Ms Stafford defaulted in a payment due to ACM Group Ltd on 10 August 2009 concerning a telecommunication service and the amount seems to $3,175.00. Ms Stafford said that she knew Mr Humphreys from Supercheap. She said that she did not talk to him about these defaults. 1398 In the Credit Application Form, Ms Stafford set out her expenses. She recites that her rental expenses are $480.00 which she thinks is a monthly amount: T, p 1197, lns 27-28. She recites that her food expenses are $200.00 which she thinks is a weekly amount: T, p 1197, ln 30. Thus, her monthly food bill was $800.00. The benefits recited on the Centrelink letter of 26 October 2009 amount to $871.00 per fortnight. Ms Stafford accepted that usually her Centrelink benefits would be exhausted from her bank account before the next Centrelink payment came in (T, p 1198, lns 11-15) although Ms Stafford then said that that was not necessarily correct. Ms Stafford said that although she was asked about her expenses, she did not put down all of her expenses at the time because she did not think some of them were relevant. 1399 Ms Stafford was taken to her bank statement for her account at the Commonwealth Bank. The transactions begin on 27 August 2009 and conclude on 22 October 2009. Ms Stafford was asked to bring in a Centrelink letter and a bank statement to Supercheap. She took in the bank statement at Folder 15, Tab 20. The bank statement shows an opening balance of $2.26. It shows a Centrelink receipt on 27 August 2009 of $575.80 and another deposit of $50.00. By 31 August 2009, the balance was $7.06. On 1 September 2009, two Centrelink payments were received amounting to $855.35. By 2 September 2009, the balance was $1.11. A further two Centrelink payments were received on 7 September 2009. By 7 September 2009, the balance was $3.61. A Centrelink pension payment was received on 10 September 2009 of $541.50. By 11 September 2009, the balance was $0.41. A further payment was received on 15 September 2009 of $398.85 and the balance, after transfers that day, was $46.76. Further payments were received on 17 September 2009 and by 22 September 2009 the balance of the account was $0.06. Centrelink payments were received on 24 September and 29 September 2009 amounting to $942.45. By 29 September 2009, the balance of the account was $2.51. This pattern continues throughout the account. The pattern reflects the receipt of monies, the payment of transfers and withdrawals to pay normal living expenses. Ms Stafford says that from time to time she does carry with her reasonable amounts of cash. She spends the money looking after her child and paying groceries and food expenses. She also likes to hold some money in reserve. 1400 As to the purchase of the car and the loan transaction, Ms Stafford accepted that by 28 January 2010 she had paid Supercheap a deposit of $2,700.00. At that time, Ms Stafford understood that the purchase price of the car would be an amount of between $8,000.00 and $9,000.00: T, p 1203, lns 6-7. Ms Stafford then returned to Supercheap in early February 2010. She had saved up and paid the deposit. She understood that she was "intending to go on with the deal" and she understood that if she did not go on with the deal she would lose her deposit. Ms Stafford says that when she went to Supercheap in early February, Mr Hulbert showed her the car she was going to purchase. It was at the front of the dealership for her. At this point, Ms Stafford did not know the price of the vehicle. She says that she then signed some documents and there were quite a few of them including documents in relation to insurance and statutory warranties. There was "a wide variety of documents". Ms Stafford said that the signing of the documents took about "an hour", "about an hour and a half". She then said that she was not sure about how long it took and then said "half an hour". Ms Stafford said that it "took a while because there were a lot of documents": T, p 1203, lns 32-37; T, p 1204, lns 24-25. 1401 Ms Stafford said that she wanted to buy the car on finance. She had paid a deposit of $2,700.00. Ms Stafford understood that this amount would "come off the purchase price". Ms Stafford was asked how much finance she was expecting to obtain to purchase the car. She responded: "I'm not sure. I just wanted the car at the time": T, p 1205, lns 7-8. Ms Stafford explained the context in which she purchased the car as follows: the amount she was expecting to obtain on finance to purchase the car "didn't really matter" to her; she "just needed a car at the time"; she "had a child and needed [a car] to get around"; she was not "anxious" to get a car but was "excited" about it; she "needed a car"; "no one else was going to sell [her] a car"; and this car was "the only car [she] was going to get": T, p 1205, lns 12-26. 1402 As to the loan contract itself, Ms Stafford gave evidence that before she saw the document she did not know that she was going to be borrowing $8,280.00. Nor did she know that she would be paying 48% interest. She said that she "understood about interest rates" and understood that 48% was a "high" rate. She said that she "really thought" that she did not have any choice because she "needed the car" and she had already paid the deposit. She regarded herself as in a position where she had to go on with the transaction or lose the deposit: T, p 1205, lns 30-47; T, p 1206, ln 1. Ms Stafford gave evidence that the repayment amount of $150.00 per week was not discussed with her before she saw the contract. She knew the repayments were weekly. She gave evidence that she did not negotiate the loan or negotiate the amount of the loan or the terms of the loan. Ms Stafford said that Mr Hulbert "went by my budget with my living expenses and stuff" and "that's why it was $150 a week". Ms Stafford said that she did not know that a brokerage fee was payable until she saw the contract document. Ms Stafford said that no-one explained to her "what the brokerage fee was for". She gave evidence that "they didn't say it was a fee" and they "didn't say anything about it": T, p 1207, lns 1-13. Ms Stafford says that Mr Hulbert went through the contract with her although she cannot recall now how Mr Hulbert went about doing that. She thinks that she was told about a cooling off period but cannot recall what he said or the effect of what he said. Ms Stafford acknowledged her initials at the foot of each page of the loan contract. She cannot recall how long it took her to "go over those pages". She understood that by signing this document she was "buying the car" and "that was explained" to her. She says that no-one explained to her anything about a Bill of Sale. Ms Stafford says that once she signed up the documents she was given the keys and drove away. 1403 Ms Stafford also said that at the time she was signing the contract, she was not sure about how much money she was borrowing or how much finance there was. Similarly, she was not aware of how much she would have to pay back. She says that these things were not explained to her at the time. She also says that she had no understanding at the time of whether the car was "worth" the amount she was paying for it. Ms Stafford gave evidence that she understood that the amount she was paying to Supercheap was approximately $11,000.00 ($10,980.00). 1404 As to the vehicle itself, Ms Stafford said that she had a few problems with it although they were minor problems. She said that the vehicle was "not running anymore" and that it "broke down a while ago", largely, it seems, by reason of lending it to Ms Stafford's family. part 26: THE EVIDENCE OF MS MARNIE TOOHEY 1405 Ms Marnie Toohey affirmed an affidavit on behalf of the respondent on 23 September 2014. I will separately examine aspects of Ms Toohey's cross-examination although I have also made reference to some aspects of it in the course of addressing her evidence more generally. 1406 Ms Toohey is a Receptionist employed at a practice called "Cairns Plastic Surgery": T, p 1235, lns 43-44. She is studying online for a Diploma in Business Administration. On 12 December 2011, she entered into a loan contract with Channic in relation to the purchase of a 2000 Hyundai Elantra Hatchback. At that time, Ms Toohey was 28 years of age. 1407 Ms Toohey says that about two weeks prior to 12 December 2011, Ms Toohey was driving along Spence Street, Cairns and saw a sign displayed outside Supercheap's car yard at 132 Spence Street. Ms Toohey had a look at some of the motor vehicles and decided that she wanted to purchase the Hyundai. She spoke with Mr Hulbert in his office about the purchase of the vehicle. Mr Hulbert told her that she would need to provide a deposit of $1,500.00 and supply a statement showing the payments she was receiving from Centrelink together with pay slips, a letter from her employer and an affidavit from her partner concerning the rent that she and her partner were paying for accommodation. At that time, Ms Toohey had been employed for about one week by Omega Medical Health Centre as a full-time Receptionist. 1408 On 12 December 2011, Ms Toohey returned to the car yard and provided Mr Hulbert with the documentation he had requested. She also paid a deposit of $1,500.00. It was on this day that Ms Toohey entered into the loan contract and other documents: T, p 1237, lns 13-14. 1409 The documents in relation to Ms Toohey are contained in Folder 19 of the Court Book. The CBPL file contains a copy of a letter dated 6 December 2011 from Mr Humphreys to Channic on behalf of Ms Toohey requesting a loan for $8,490.00 on the basis of repayment of approximately $100.00 per week. The letter attached 10 documents in support of the application. One document is a Credit Proposal Disclosure Document dated 6 December 2011 by which CBPL advises Ms Toohey of the fees to be charged in formulating the credit proposal to Channic for an amount of credit of $8,061.60. The brokerage fees are $550.00. Ms Toohey cannot recall signing the document although she acknowledges her signature on the document. She says that the date could also be in her handwriting: T, p 1250, lns 38-45. The document at Folder 19, Tab 6 is a CBPL Credit Quote also dated 6 December 2011. Ms Toohey acknowledged her signature on that document although she cannot recall signing it. 1410 Another document is a Credit Application Form. Page 1 of that form recites that Ms Toohey's gross income is $1,600.00 per fortnight as a Receptionist. The information on p 1 is in Ms Toohey's handwriting: T, p 1257, lns 43-44. At this time, 6 December 2011, Ms Toohey had no dependents as the children were "with their father". On the form, Ms Toohey wrote that she had been employed with Omega Health for "2 months". However, Ms Toohey does not understand why she wrote that observation on the form. At the time that Ms Toohey entered into the loan contract she was on probation with Omega Health. She also says that no-one asked her about her period of probationary employment, in relation to the loan. The Financial Information box recites that Ms Toohey is paying rent/mortgage of "$330.00 per week", Telstra expenses of $50.00 per week and utilities expenses of $43.33 per month. As to the rent amount, Ms Toohey thinks that she may have been paying $330.00 per fortnight. The entry for food is $200.00 per week although that amount is then crossed out and the words: "Taken up in Living Expenses" is inserted. As to whether she has any known credit defaults, she answers "yes". The form identifies, next to that answer, "Telstra" and "Ergon". Ms Toohey says that those entries are not in her handwriting. The CBPL file contains an Income Statement from Centrelink dated 6 December 2011 which recites that Ms Toohey was receiving Rent Assistance as at 31 October 2011 of $158.48. Ms Toohey gave oral evidence that she was receiving Centrelink benefits because she had three children. She said she received Family Tax Benefit A at $149.00 per fortnight. The file contains a letter from Omega Health (Ms Lauren D'Arcy) confirming that Ms Toohey would be working as a casual employee for 50 to 60 hours a fortnight and earning a gross fortnightly income of $1,500.00 on average. The file contains a Statutory Declaration from Ms Kitt confirming that Ms Toohey is lodging with her (from 12 December 2011) and will be paying $160.00 per week by way of rent. Ms Toohey and her partner were renting a room in a house owned by Ms Toohey's partner's sister (Ms Kitt): T, p 1256, lns 43-46. 1411 The CBPL file contains a Preliminary Test in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 5/12/2011 Client Name: Marnie Toohey Broker: Cash Brokers Pty Ltd Loan Purpose: Motor vehicle purchase $8,990 Cash Deposit $1,500 Capacity: Borrower 1 Centrelink $2,858.00 Family Tax Benefit (Child does not reside) $343.37 Maintenance $0.00 total monthly income $3,201.37 Expenses Rent/board monthly (Half Share With Mick Kitt) $715.00 Mr Rentals $375.70 Living expenses $950.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $0.00 Mobile Phone $43.33 repayment this loan $433.33 total expenses $2,517.36 Surplus/Deficit $684.01 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 1412 The CBPL file contains a letter dated 6 December 2011 from Mr Hulbert for Channic to CBPL advising the broker that Channic had decided that the Credit Contract proposed for Ms Toohey was not unsuitable for her. The Supercheap invoice for the sale of the car recites the vehicle as a 2000 Hyundai Elantra White Hatchback 5 Speed Manual 4-Cylinder vehicle with an odometer reading of 134,518. The sale price including GST is $8,684.00 and the total price including registration fees, stamp duty and an extended warranty ($1,000.00) plus title check amounts to $9,990.00. 1413 On 12 December 2011, Ms Toohey entered into a loan contract with Channic described as Continuing Credit Loan Contract and Mortgage No: 5240. It contains the following information: FINANCIAL TABLE Amount of credit of the loan $9,061.50 Annual percentage rate 48% per annum Total amount of interest payable $9,689.81 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 94 consisting of 93 repayments each of $199.54 Plus a Final Repayment of $194.09 Total amount of repayments $18,751.31 Date of first repayment 16/12/2011 Frequency of repayment Fortnightly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 12/12/2011 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1414 The Comparison Rate entry is in these terms: Comparison Rate 46.7278% per annum This rate is calculated on the $9,061.50 credit amount over a 187 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1415 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 12/12/2011 Loan Draw Down Date 12/12/2011 Loan term commencing from the Draw Down Date 187 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $550.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $8,490.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1416 In terms of the chronology, Ms Toohey says that on 12 December 2011 she returned to the premises at 132 Spence Street and provided Mr Hulbert with the documentation he had requested. Ms Toohey says that on 12 December 2011, Mr Hulbert asked her to read the loan contract. She spent about 30 minutes reading "the important bits of the contract that Colin had pointed out to me": T, p 1239, lns 10-11. Ms Toohey says that after that 30 minutes, Mr Hulbert took her to all the terms contained in the loan contract including the terms set out in the Financial Table on p 1 and the Schedule on p 2. Ms Toohey says that Mr Hulbert pointed out the 48% interest rate, the number of weeks required to pay off the loan and the fortnightly repayment: T, p 1239, lns 30-35. Ms Toohey says that she understood that the total amount of the loan was "around $18,000, $18,500": T, p 1242, lns 38-39. Ms Toohey says that Mr Hulbert pointed out all of the applicable fees and charges including the payment of brokerage and the warnings contained on pp 6 and 7 of the contract. Ms Toohey says that Mr Hulbert drew her attention to the boxes on p 8 of the contract and she elected to sign Box B acknowledging that she did not wish to obtain legal advice about the contract. Ms Toohey says that Mr Hulbert provided her with a copy of the loan contract which was available to her when he was undertaking the "processes" earlier described. Ms Toohey says that Mr Hulbert "pointed to salient portions of the loan contract" as he was drawing her attention to the relevant items. She says that after Mr Hulbert had completed those processes, she signed the contract on p 7 and initialled each page of the contract. Ms Toohey says that Mr Hulbert pointed out the Financial Health Warning on p 6 of the loan contract. She says that Mr Hulbert took her through the General Conditions at p 9 and following of the contract. Ms Toohey says that they went "through the entire lot": T, p 1240, ln 46; T, p 1241, ln 5. 1417 As to the nature of the credit arrangements, Ms Toohey gave evidence that she understood that she was buying the car on credit and if she did not make the repayments the car would be re-possessed. She understood that "Colin or the company [would own] the car until I've paid it in full": T, p 1241, lns 7-13. 1418 Ms Toohey adds the observation that she signed the loan contract "in the exercise of her own free will". She says she was "not overborne by Colin Hulbert" when she signed the loan contract. She also says that when she signed the loan contract, she "was not in a position of unequal bargaining power in relation to Colin Hulbert": paras 16, 17 and 18 of her affidavit. Objection is taken to these bald conclusionary assertions which swear the issue. I admit the paragraphs of Ms Toohey's affidavit in these terms which rise no higher than bald assertions. No proper context is given for the conclusionary assertions. They amount to an expression of opinion by Ms Toohey. 1419 There seemed to be some confusion in Ms Toohey's evidence about matters she refers to at para 19 of her affidavit. In para 19, Ms Toohey says this: On 12 December, 2011 Colin accompanied myself when we took the vehicle referred to in paragraph 2 [which is actually the vehicle referred to in para 4, the Hyundai Elantra] for a test drive for about 10 to 20 minutes, after I had signed the contract, but also after Colin Hulbert had advised me that there was a "cooling-off period" in respect of the loan contract such that it would not be enforceable for the period of the cooling off period. [emphasis added] 1420 In oral evidence, Ms Toohey said that para 19 was not correct and that Mr Hulbert had accompanied her on a test drive of the vehicle for 10 to 20 minutes before she signed the loan contract and before Mr Hulbert told her about the cooling off period. The reference to "cooling off period" seemed to be, as originally framed, a qualification upon the odd circumstance that Ms Toohey had taken the car for a 10 to 20 minute test drive with Mr Hulbert after signing the loan contract and other documents. Test driving the vehicle after entering into the loan contract would be explicable if Ms Toohey nevertheless had a period of time, such as a cooling off period, to resile from the transaction (whether it be the purchase of the vehicle or the loan contract itself, or both) after having entered into the relevant transaction. However, her oral evidence was that Mr Hulbert told her about the cooling off period before she signed the documents and the test drive of the vehicle also occurred before she signed the documents. 1421 In oral evidence, Ms Toohey described the cooling off period during which she could "take the car back and the contract wouldn't be enforced" as 24 or 48 hours: T, p 1241, lns 39-42. Ms Toohey says that she understood that if she did not want the car within 24 hours, she could take it back "and get all her money back": T, p 1244, lns 8-9. As to the loan contract, Ms Toohey affirmed her evidence (also set out at para 19) that Mr Hulbert told her that there was a cooling off period in respect of the loan contract such that it would not be enforceable: T, p 1247, lns 40-47; T, p 1248, lns 1-10. Ms Toohey accepted, in oral evidence, that she would "probably" be "a bit shocked" if the position is that under the loan contract she has no right to withdraw from it: T, p 1244, lns 11-13. Ms Toohey accepted that she "understood what being bound" by the loan contract meant (T, p 1244, ln 39); that she would be required to make a "lot of payments" over time under it (T, p 1244, ln 41); that immediately on signing the loan contract she was "obtaining" the credit under the contract (T, p 1245, lns 7-8); and that once she obtained the credit there was "no going back": T, p 1245, ln 14. 1422 Ms Toohey says that at the date of swearing her affidavit she was still making payments to Channic and that she had not experienced any mechanical problems with the vehicle. She purchased new tyres for the vehicle in March 2013. Ms Toohey gave oral evidence that the vehicle had always run well until a few weeks before the date of giving evidence when the vehicle "blew a head gasket" while being driven off-road along a dirt track. She said that the vehicle will cost a lot of money to repair. She adds this at para 24: I have no complaints at all about the way that the sale of the vehicle was conducted by Colin Hulbert, nor as to the nature of the loan that I entered on 12 December 2012 … 1423 Ms Toohey gave evidence that she went to school in Cooktown and Stanthorpe. She attended school to Grade 12. She has a Certificate Level 3 in Childcare and a Diploma in Childcare. She is studying an online course in Business Administration. She regards herself as commercially literate. She has never lived at Yarrabah or lived in any other Aboriginal community. She is not an Aboriginal person: T, p 1248, lns 16-32; T, p 1249, lns 1-4. 1424 As to her credit history, Ms Toohey gave authority to Mr Hulbert to obtain a Veda credit check concerning her credit history. The credit report is dated December 2011. Ms Toohey accepted in oral evidence that there was a payment default on 7 July 2009 to an organisation called "Same Day Money" ($1,333.00); another payment default on 2 June 2008 to Radio Rentals ($824.00); another payment default on 20 March 2007 to Ergon ($688.00); another payment default on 4 February 2007 to a company called "Baycorp" ($100.00). The Veda Credit Report shows another default on 1 November 2009 to Telstra ($817.00) and there seem to be other credit default references. In any event, Ms Toohey accepted in her oral evidence that looking at the "Consumer Credit Enquiries" section of the search, there had been "many, many applications" and most of her applications for finance had been rejected. Ms Toohey also accepted that that was so because "at the time, you knew that you had a very, very bad credit history": T, p 1254, lns 19-39. 1425 Ms Toohey gave evidence that she had problems with the repayment of the loan. The car was re-possessed. She re-negotiated the payment plan and commenced repayments under the new plan of $200.00 per fortnight. By doing so, she retrieved possession of the vehicle. 1426 I propose to now address other aspects of Ms Toohey's cross-examination. Ms Toohey's affidavit is relatively short. It consists of three pages although almost all of the information is contained on pp 2 and 3. The affidavit quite briefly asserts the matters I have already addressed from her affidavit. In the course of oral evidence, Ms Toohey was quite assertive in her manner and, in some respects, abrupt. Plainly enough, she was a little uncomfortable about being challenged on some of her assertions. She became upset and asked for a short break in the course of her cross-examination. This occurred after she was questioned about the various credit defaults reflected in the Veda Credit Report. 1427 Ms Toohey was then asked a number of questions about the process of considering and entering into the loan contract and other documents. 1428 As to these matters, she gave this evidence. Before returning to the dealership on 12 December 2011, Ms Toohey had not reached any agreement or had any discussion with anyone (Mr Hulbert or otherwise) about the time period over which the loan might run. Nor had she had any discussion about the interest rate. Nor was there any discussion about an "extended warranty". Ms Toohey thought that there was some discussion about an extended warranty on 12 December 2011 but then rather thought that the discussion about the warranty concerned the statutory warranty rather than any notion of an extended warranty: T, p 1258, lns 10-23. Ms Toohey was then taken to Folder 19, Tab 16 which is CBPL's Preliminary Test document which bears the date 5 December 2011. Ms Toohey cannot recall whether anyone told her that a preliminary test had to be done. Ms Toohey also gave evidence that between the period from 6 December 2011 to 12 December 2011, no-one (Mr Hulbert or otherwise) told her that the loan she had applied for would have to be "approved": T, p 1259, lns 1-3. Ms Toohey was also taken to Mr Hulbert's letter to Cash Brokers dated 6 December 2011 in which Mr Hulbert tells CBPL that the Credit Contract sought by Ms Toohey was "not unsuitable" for her (Tab 17). Ms Toohey gave evidence that she could not recall ever having seen that letter: T, p 1259, lns 6-7. Ms Toohey says that she returned to the dealership on 12 December 2011 because she had the deposit of $1,500.00 ready to be paid. She says: "And then I got the $1,500 and I came back. And on the 12th, that's when we did the contract business". Ms Toohey says that that day she brought into the dealership the Centrelink documents and other documents Mr Hulbert had asked her to obtain. Ms Toohey gave the documents and the deposit to Mr Hulbert. Ms Toohey says that she and Mr Hulbert sat down, looked at the loan documents, went through everything and signed the papers: T, p 1260, lns 4-6. At this point, Ms Toohey repeated her observation contained at para 19 of the affidavit that the papers were signed prior to taking the car for a test drive although she then said that she was confused about that matter and re-asserted her position that she signed the loan contract after the test drive: T, p 1260, lns 5-11. 1429 As to the price of the vehicle, Ms Toohey recalls that when she was walking around the car yard with her friend on the earlier occasion, she asked how much the car would cost. 1430 Ms Toohey gave evidence that by signing the loan contract she understood that she was acquiring a car "on credit" and that the loan contract was explained to her as the document by which she acquired credit to purchase the car. She gave evidence that she understood that Supercheap would continue to own the car until it had been paid in full and that this was explained to her. She says she has a clear recollection of that matter and understood that it would be "like a mortgage": T, p 1260, lns 31-44. Ms Toohey gave evidence that she did not discuss with Mr Hulbert or anybody else the amount of credit she would be obtaining under the Credit Contract, before she returned to the dealership on 12 December 2011: T, p 1260, lns 46-47. The proposition was put to Ms Toohey that she probably knew that the price of the car was $9,990.00 and that she had paid a deposit of $1,500.00 with the result that she would be seeking credit for the difference, namely, $8,490.00. However, Ms Toohey said that she understood that the total credit that she would be obtaining under the contract was $9,689.81: T, p 1261, lns 5-9. She said that it was explained to her that that was the total credit that she was obtaining, that is, $9,689.81: T, p 1261, lns 10-11. 1431 Ms Toohey made those observations by reference to p 1 of the loan contract which she had before her and to which she referred when explaining her understanding. The amount of $9,689.81 is, however, the total amount of interest payable under the loan contract in respect of an amount of credit sought of $9,061.50 (made up of $8,490.00 payable to Supercheap; $550.00 payable to CBPL for brokerage; and $21.50 payable as an establishment fee to Channic) and the total amount of repayments were to be $18,751.31. 1432 As to the brokerage, Ms Toohey said that she was aware of the brokerage amount and that Mr Hulbert pointed this out when turning the pages of the loan contract and pointing to features of the contract. However, Ms Toohey gave evidence that before she saw the loan contract she was not aware that any brokerage fee was payable (T, p 1261, lns 21-24) and that she was first told of brokerage when it was pointed out to her by Mr Hulbert on 12 December 2011: T, p 1261, lns 26-27. 1433 As to the other terms of the contract, Ms Toohey says that Mr Hulbert took her to the "important parts of the contract and pointed out and explained [them]": T, p 1261, lns 32-35. Ms Toohey says that Mr Hulbert told her that she could "sit there and read the contract" if she wanted to. She says that Mr Hulbert took her to pp 1, 2, 3, 6, 7 and 8 of the loan contract and "went through some of these". Ms Toohey says that she "sat there … and I went through the rest of it": T, p 1261, lns 40-43. Ms Toohey cannot recall whether she "went through" the Information Statement at p 17 of the contract (pp 17 to 19 – which sets out a series of questions and answers about the contract) although she added again that she did "sit there and go through [the contract]". 1434 Ms Toohey accepted that she would have read cl 3 of the Information Statement which asks and answers the question: "Can I terminate the contract?", and that she would have understood, from reading that question and answer, that once she obtained the credit there was "no going back on the loan": T, p 1262, lns 5-7. She gave evidence that having done so it did not occur to her that that question and answer was inconsistent with Mr Hulbert having said that there was a cooling off period in relation to the loan contract. Ms Toohey recalls that Mr Hulbert told her that there was a period during which she "could get out of it" which he described as "a cooling off period". 1435 As to the motor vehicle itself, Ms Toohey did not have the car independently inspected before she "took it". Ms Toohey said that she did not feel any need to have the car inspected notwithstanding that she did not know whether it was mechanically in good condition. Ms Toohey said that she "wanted that car". She did not know whether $9,990.00 was a "good price for the car" because she did not know "much about prices for cars" and she had "not really shopped around". She said that she was prepared to take the car at the price without seeking to "negotiate the price" notwithstanding that she had "not really" looked around very much for other cars. She accepted that on 12 December 2011, Mr Hulbert made arrangements for her for the vehicle to be comprehensively insured with Suncorp. Ms Toohey cannot recall whether she spoke directly to the insurer. Tab 43 of Folder 19 contains a copy of the Suncorp Certificate of Insurance. It recites Motor Vehicle Comprehensive cover for the period 12 December 2011 until 12 December 2012. The recited "agreed value" for the car is $6,365.00. Ms Toohey gave evidence that she understood that she was insuring a car at an agreed value of $6,365.00 for which she had just paid $9,990.00. Ms Toohey was asked to explain why she was paying "the best part of $10,000 for a car which you're happy to insure for $6,300". She said this at T, p 1264, lns 41-43: I needed a car. I had three children. I've come out of a bad relationship. I was starting off new. And there was someone out there that was going to give me a chance. 1436 This exchange then occurred at T, p 1264, lns 45-46 and T, p 1265, ln 1-20: Q: And that's the only reason you would pay $10,000 for a car you agreed to insure for $6,300 is because there was someone who was going to give you a chance, but there was no one else who was going to give you a chance. Correct? A: Most likely. Yes. Q: And likewise, coming back to the contract, you were told when you signed and when you went through the contract with Mr Hulbert that the interest rate is 48%? A: Mmm. Q: And you knew that was a very high interest rate, didn't you? A: Yes. Q: And the reason you were prepared to accept it was because this was your chance to get a car. Correct? A: Yes. It was. Q: And on this occasion when you were signing the contract, Mr Hulbert, I take it, told you the amount of the repayments? A: Yes. Q: And that's when you heard that you had to pay $199.54 each fortnight? A: Yes. Q: But that hadn't been discussed before this point? A: Not that I can recall. 1437 Ms Toohey gave evidence that she could not recall taking up any extended warranty although she thought that she had "a book in the car [for a] warranty and a card for the warranty". The Supercheap sales invoice recites an extended warranty for $1,000.00. 1438 As to the bank statement, Ms Toohey recalled that she printed off a copy of her bank statement which she accessed through her online banking arrangements. However, Ms Toohey does not mention in her affidavit that she took a bank statement into the dealership. She says that she identifies in her affidavit (para 8) the documents she can remember taking into the dealership. She cannot remember whether she took a bank statement into the dealership or not. Tab 14 of Folder 19 is a bank statement for an account with the Commonwealth Bank reciting transactions between 20 October 2011 and 6 December 2011. Ms Toohey thinks that this statement "looks like the one [she] might have printed off". Ms Toohey accepts that at the time of entering into the loan contract and the transaction to purchase the car, she "had a lot of expenses … to attend to": T, p 1266, lns 18-90. For example, on 20 October 2011, the account is credited with the refund of a purchase from "Best and Less" of $106.93 in relation to clothing. On that day, the account was in credit $168.15. On 28 October 2011, there is a direct debit to "Mr Rental" in respect of a rental of furniture of $173.40 which resulted in the account being in debit $163.65. On 29 October 2011, there is a direct credit from Centrelink to the account (Aust Gov Families) of $158.48. The account was, on that date, overdrawn $5.17. On 31 October 2011, the account is credited with a payment of $182.23 from "Ollys IGA Xpress" which was Ms Toohey's employer as she was undertaking night time work there. By 5 November 2011, the account was in credit $6.80. Ms Toohey accepted that, for the month of October at least, the pattern of her income and expenditure was that as money came into the account it was used up on necessary expenses at the time. Ms Toohey thinks that she provided, as best she can recall, this bank statement to Mr Hulbert. 1439 As to the time engaged in the process with Mr Hulbert, Ms Toohey thinks that it took about a half an hour or perhaps between 30 to 45 minutes and that it was the loan contract that she and Mr Hulbert "went through". PART 27: THE EVIDENCE OF MS BOBBIE-JO LOURIE 1440 Ms Lourie affirmed an affidavit in the proceedings on behalf of the respondent on 22 September 2014. She gives this evidence. 1441 Ms Lourie is self-employed as the manager of a cleaning business. In "about September 2011", she purchased a Mitsubishi Magna motor vehicle from Supercheap in Spence Street, Cairns. She needed a vehicle for her husband to drive as he was a seasonal shift worker. Ms Lourie says that prior to the purchase of the vehicle she had purchased other vehicles using loan finance and had entered into other contracts to purchase goods on credit. When attending the Supercheap premises, Ms Lourie says that she spoke with a man called "Kevin" and told him that she wanted to purchase a vehicle by taking out a loan to do so. She says that Mr Humphreys told her that a deposit of $3,000.00 would be required in order to purchase the Mitsubishi Magna. Ms Lourie says that she attended the Supercheap premises on two occasions. These discussions occurred on the first occasion. 1442 The folder in the Court Book relating to the transactions with Ms Lourie is Folder 13. The CBPL file contains a letter signed by Mr Humphreys dated 26 October 2011 addressed to Channic by which CBPL seeks a loan on behalf of Ms Lourie for an amount of $8,990.00. Mr Humphreys seeks repayments of approximately $100.00 per week. The CBPL file contains a Credit Proposal Disclosure Document dated 26 October 2011 by which CBPL recites a credit amount of $9,561.50 being sought by Ms Lourie (and signed by her). The document acknowledges a brokerage fee payable to CBPL of $550.00. The file contains a Credit Application Form which recites, as to income, that Ms Lourie is a Centrelink recipient. Ms Lourie says that she filled out the form. As to financial information, the document recites that Ms Lourie has no known credit defaults and that she pays $100.00 per week in respect of food expenses. Her telephone expenses are recited as "prepaid". She did not write that word in the box. The "Personal Loans" item recites a crossed out loan repayment of $50.00 per week with the words "last payment". The amount is presumably crossed out on the basis that the loan was about to be discharged. The "Rent/Mortgage" item is blank because Ms Lourie's husband from whom she had separated was paying the rent for her. Ms Lourie signed the form on p 3 and dated it "26-10-11": T, p 1283, lns 1-4. 1443 The CBPL file contains a Centrelink letter dated 26 October 2011 addressed to Ms Lourie. Ms Lourie thinks that she went to Centrelink on 26 October 2011 to obtain the letter. The letter contains the following information: Future Regular entitlements and payments Payment Type Amount Date Paid Parenting Payment Single $620.60 28 Oct 2011 Pharmaceutical Allowance $6.00 28 Oct 2011 Pension Basic Supplement $20.90 28 Oct 2011 Family Tax Benefit Part A ($277.20)* $269.92 4 Nov 2011 Family Tax Benefit Part B ($97.58)* $94.50 4 Nov 2011 Rent Assistance ($107.52)* $104.72 4 Nov 2011 * Note: These payments, in brackets, are your current legislated maximum entitlements. In some cases the payments reported will be different to the amounts you actually receive. 1444 The Centrelink statement contains information concerning deductions from payments to which Ms Lourie is entitled. The deductions are these: Deductions from your payment Payment Type Deduction Amount Date Paid Family Tax Benefit Lump Sum Advance Repayment $69.30 21 Oct 2011 Parenting Payment Single Centrepay Deductions $85.00 14 Oct 2011 Parenting Payment Single Rent deduction Scheme Deduction $23.00 14 Oct 2011 1445 The CBPL file contains a Preliminary Test document in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 26/10/2011 Client Name: Bobbie-Jo Lourie Broker: Kevin Humphreys Loan Purpose: Motor vehicle purchase $9,990 Cash Deposit $1,000 Capacity: Borrower 1 NET monthly income $2,419.38 Board From Brother $0.00 Maintenance $524.03 total monthly income $2,943.41 Expenses Radio Rentals $140.83 Bond Loan $49.84 Rent/board monthly $0.00 Living expenses $1,600.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $150.15 Mobile Phone Prepaid repayment this loan $433.00 total expenses $2,373.82 Surplus/Deficit $569.59 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 1446 On 26 October 2011, Ms Lourie entered into a loan contract with Channic described as Continuing Credit Loan Contract and Mortgage No: 5228. The loan contract contains the following financial information: FINANCIAL TABLE Amount of credit of the loan $9,561.50 Annual percentage rate 48% per annum Total amount of interest payable $13,006.10 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 226 consisting of 225 repayments each of $99.93 Plus a Final Repayment of $83.35 Total amount of repayments $22,567.60 Date of first repayment 4/11/2011 Frequency of repayment Weekly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 26/10/2011 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1447 The Comparison Rate entry is in these terms: Comparison Rate 47.6384% per annum This rate is calculated on the $9,561.50 credit amount over a 226 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1448 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 26/10/2011 Loan Draw Down Date 26/10/2011 Loan term commencing from the Draw Down Date 226 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $550.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $8,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1449 The Supercheap invoice recites the vehicle as a 1997 Mitsubishi Magna TF Advance Green Sedan 4 Speed Automatic 6-Cylinders. It has an odometer reading of 99,161. The price of the vehicle is $8,640.50 including GST. The total price including registration fees, stamp duty, an extended warranty ($1,000.00) and a title check amounts to $9,990.00. 1450 Ms Lourie says that although Mr Humphreys told her that the deposit would be $3,000.00, she says that she spoke to another man called "Colin" who told her that she could obtain a loan to purchase the Mitsubishi vehicle with a deposit of $1,000.00. Ms Lourie says that Mr Humphreys took her into the office and showed her "some documentation in relation to taking out a loan". This occurred on the first visit to the car yard. She says that Mr Humphreys asked her questions about her income and her fortnightly expenses. Ms Lourie told Mr Humphreys that she was a recipient of Centrelink payments and maintenance. She says she advised him of all of her household expenses and provided him with documents in relation to her identity and income. She says that Mr Humphreys: "wrote that information on a form, which I signed": para 9 of Ms Lourie's affidavit. These facts at para 9 seem to be a conjunction of events. In oral evidence, Ms Lourie told Dr Spence that Mr Humphreys spoke about the loan and told her what she "had to bring back to apply for the loan". Mr Humphreys told her she would need a Centrelink income statement, a bank statement and 100 points of ID. These events must have occurred at the first meeting. Ms Lourie says that she understood the document she signed in that regard was "related to pre-approval of the proposed loan". Ms Lourie says that "some days after the events" described, she received a telephone call from Mr Humphreys. He told her that she "could attend the premises of [Supercheap] and make an application to purchase the Mitsubishi vehicle". In oral evidence, Ms Lourie said that Mr Humphreys telephoned her and told her that "it was basically pre-approved" and she then went back to the car yard and signed the contract: T, p 1273, lns 5-6. 1451 She says that she attended the premises of Supercheap and "Kevin" took her through a loan contract and explained things to her about it. She puts it this way at paras 12, 13 and 14 of her affidavit: 12. I again attended the premises of [Supercheap] and "Kevin" took me through a loan contract and explained to me what the total amount of the loan would be, that the interest rate would be 48%, what weekly payments would be required, the date on which the loan would be paid out, that there was a brokerage fee of about $1,000, and he showed me where the contract provided this information. 13. The time I spent with "Kevin" on the second occasion I attended [Supercheap] was when he took me through the loan contract was about three hours, and he explained the nature and contents of the loan contract clearly to me in detail. 14. On the second occasion that I attended [Supercheap] I paid the $1,000 deposit in cash, signed the loan contract, and took receipt of the Mitsubishi vehicle. 1452 In oral evidence, Ms Lourie told Dr Spence that things happened a little differently in terms of entering into the loan contract (and explanations given about it), as compared with her affidavit evidence. She said that "first" she spoke to Kevin about the loan contract and then she spoke to Colin and Colin "went back through the whole contract with me again": T, p 1273, lns 9-15. As to the conversation with Colin, Ms Lourie said: "All up I was there a few hours that day between the pair of them": T, p 1273, lns 22-23. Ms Lourie was pressed by Dr Spence about how long the conversation may have taken with Mr Hulbert and she said: "Probably like three hours all up with them", that is, "between the pair of them [b]ut I'm a 'have a chat' [person] so that probably added to the time": T, p 1273, lns 25-29. Ms Lourie told Dr Spence that on the second occasion that she went to the car yard they "had all my paperwork there for the car, yes, that I had to sign": T, p 1274, lns 16-17. Ms Lourie was asked whether Mr Humphreys had a document with him (and in front of Ms Lourie) when he had the first conversation with her (before Mr Hulbert spoke to her). Ms Lourie seemed unable to identify any particular document and repeated that both Mr Humphreys and Mr Hulbert "went through all the paperwork with me": T, p 1274, lns 21-34. Ms Lourie then put it this way at T, p 1274, lns 36-38: I had papers to sign to say about my loan, my weekly payments, how much it was going to be, my contract. I also had to pay a brokerage fee, if that's what it's called. 1453 Ms Lourie gave evidence that she was sitting "at the front of Kevin's desk" with the document "in front of her" as both of them explained the matters quoted above "to me clearly": T, p 1274, lns 40-47. The discussion started at Kevin's desk. Then Ms Lourie continued to have a discussion with Colin, having gone into his office. She said that Colin "read [the documents] back out to me": T, p 1275, lns 11-12. Then "in the end we were sitting at Kevin's desk altogether" (T, p 1275, lns 8-9) and "I'm pretty sure that's when I signed it all": T, p 1275, lns 14-15. Ms Lourie says that Kevin and Colin took her through the contract "page by page": T, p 1275, ln 24. Ms Lourie took the Mitsubishi away the same day she signed the contract. 1454 Ms Lourie says that about two days after taking possession of the vehicle, she took the car back to Supercheap in order to have a hole in the exhaust pipe repaired under warranty. Supercheap did so. Ms Lourie says that she has not had any other mechanical issues with the vehicle and, at the date of her affidavit, she was still making payments on the loan. She says that when she took out the loan contract, she exercised her own free will to purchase the vehicle. She also says this: "I was not placed under any pressure to enter a loan contract, 'Kevin' virtually read the entire loan contract to me": para 18 of her affidavit. Ms Lourie told Dr Spence that she did not feel in a position of vulnerability when dealing with either Mr Humphreys or Mr Hulbert. Ms Lourie also adds this at para 19: "… I have no complaint about the manner in which I entered the loan contract, the terms of the contract, or the payments that I have made or the condition of the Mitsubishi vehicle". 1455 Ms Lourie was asked by Dr Spence about her understanding of the notion of the word "mortgage" in the description of the loan contract as a Continuing Credit Loan Contract and Mortgage. Ms Lourie said that she "knew what [she] was putting herself into when [she] got that loan for a car" and that was "obviously more debt" (T, p 1276, lns 17-23), that is, "more debt, but I wanted a car": T, p 1276, ln 23. Ms Lourie told Dr Spence that Kevin took her "through all of it [the loan contract]" and so too did Colin: T, p 1276, lns 33-36. This included, by both of them, the list of repayments on pp 5 and 6 and the matters set out at pp 7 and 8: T, p 1277, lns 1-4; T, p 1277, lns 1-16. Ms Lourie thinks that her attention was "probably not one hundred per cent [drawn] to Box B" concerning an election not to obtain legal advice. She said she was "just signing it and leaving": T, p 1277, lns 29-30. Ms Lourie thinks that Mr Hulbert did not take her through the General Conditions: T, p 1277, lns 42-43. 1456 Ms Lourie gave evidence that she was still paying off the loan. She said that she had experienced problems making the repayments partly because she and her husband had both had operations. Ms Lourie contacted Mr Hulbert who agreed that she could "hold back payments". This happened on two occasions: T, p 1278, lns 4-15. Ms Lourie explained her reason for going to Supercheap, in this way, at T, p 1278, lns 20-25: Probably because he was willing to give me a go because I was on Centrelink payments … Because you can't go on Centrelink benefits and go to a car yard and get finance. 1457 In cross-examination, Ms Lourie gave evidence that she had already unsuccessfully tried to get a car from other car yards. Ms Lourie accepted that Supercheap was "really [her] only choice": T, p 1279, lns 43-46; T, p 1279, ln 1. In cross-examination, Ms Lourie said at T, p 1279, lns 9-10, as to the signing events: I don't remember a lot of it. I remember signing it all. I just knew I was getting a new car and I was leaving with that car. 1458 Ms Lourie also said in cross-examination that as to the time spent talking to Mr Humphreys and Mr Hulbert about the contract, she was there "for a good while but I like to talk a lot". She accepted that, "taking out the bits [where] you were talking about other things", it was fair to say that it was hard to "figure out how much time was spent actually going through the contract": T, p 1279, lns 29-39. 1459 Ms Lourie gave evidence that she was born in New Zealand and grew up there. She completed her schooling there. She has no post-school qualifications. She has never been to Yarrabah. She purchased the car for her husband who does seasonal day and night shifts during the cane season. She also wanted a car to take her children to and from school. Ms Lourie regarded herself as "fairly commercially astute": T, p 1281, lns 41-44. Folder 13, Tab 9, is a copy of a Commonwealth bank statement reciting transactions from 22 July 2011 to 21 October 2011. Ms Lourie thinks that she went into the bank branch to get the statement. The statement is in her maiden name of "Walling". Ms Lourie accepted that she was intending to provide a bank statement to support a loan as demonstrating the amount of money she would have in her bank account: T, p 1285, lns 7-12. Ms Lourie accepted that she had "a lot of expenses to deal with": T, p 1285, ln 14. Ms Lourie also gave evidence that her husband was the person who was going to pay the fortnightly loan contract repayments of $200.00: T, p 1285, lns 1-5. 1460 As to the vehicle, Ms Lourie says she was told the price of the car. She said that the model, age and mileage of the car "wasn't of much relevance to her": T, p 1287, lns 27-44. 1461 At paras 12 and 13 of her affidavit, Ms Lourie mentions only discussions about the loan contract with Mr Humphreys. There is no mention, at all, of Mr Hulbert having taken Ms Lourie through the loan contract. Ms Lourie explained that anomaly in these terms at T, p 1287, lns 27-30: It wasn't until I was back home and speaking to my friend that was with me, and her name was Alice. And I spoke to her about it again. And that's when I recalled again that it was all up together with the pair of them. [emphasis added] 1462 Ms Lourie accepted that in her affidavit she made no mention of Mr Hulbert having explained anything about the loan contract to her: T, p 1287, ln 36. Ms Lourie did not accept that it had been "suggested" to her that she "should remember" that Mr Hulbert was also there in these exchanges: T, p 1287, lns 44-45. Ms Lourie accepted that, to the best of her recollection, it was "probably a good possibility" that the first time she was told about the interest rate of 48%, the payments and how much the car was going to be, was when they were pointed out to her on the loan contract on 26 October 2011: T, p 1287, lns 1-3. 1463 At para 12 of Ms Lourie's affidavit, she says that she was told the brokerage fee was "about $1,000" and that Mr Humphreys showed her the place where the contract sets out that information. Ms Lourie accepted that the brokerage fee was, actually, $550.00. Ms Lourie also accepted that the first time she could recall brokerage being discussed with her at Supercheap was when she was "doing the contract up" which was 26 October 2011. Ms Lourie says she was told there would be a brokerage fee: T, p 1289, lns 24-25. Ms Lourie said that she could not now recall the explanation given of a "brokerage fee" and said: "but, yes, [it was] something to do with paperwork" and it "was explained properly": T, p 1289, lns 27-29. 1464 Ms Lourie gave evidence she was told that, by the loan contract, she was buying the car on credit and the notion of a "mortgage", "would have been explained to her" although she does not recall the explanation. She then added: "every last little bit was gone through with me": T, p 1290, ln 14. 1465 Ms Lourie has no clear recollection of whether she was told there was a cooling off period. Nor can she recall what was said about a statutory warranty period: T, p 1290, lns 19-26. 1466 Ms Lourie was taken to Tab 37 which is a copy of the Supercheap invoice for the sale of the 1997 Mitsubishi car at a sale price of $9,990.00. The sale price includes the purchase of an extended warranty for $1,000.00. Ms Lourie does not recall being asked to pay an extra $1,000.00 on top of the price of the car for an extended warranty. Nor does she recall seeing the Supercheap invoice: T, p 1290, lns 34-41. 1467 Ms Lourie accepted that on the second occasion that she went to Supercheap which was 26 October 2011 (although Ms Lourie could not recall the date), she took in her documents, paid the deposit, filled out the Credit Application Form, signed the loan contract, signed the "bunch of other documents with the loan contract" and, over the course of a three hour period, received an explanation of the loan contract and all the other documents. She says that although there may have been "general talking" as well, she recalls being there for about three hours: T, p 1290, lns 43-44; T, p 1291, lns 1-9; ln 20; lns 35-38. In this period of time, Ms Lourie does not recall anyone saying to her that various documents such as a loan suitability checklist, or a verification checklist, or a suitability statement, would need to be prepared or done before any loan might be approved or provided: T, p 1291, lns 40-45; T, p 1292, lns 1-5. 1468 Ms Lourie concluded those responses by saying at T, p 1292, lns 8-12, this: I don't recall that whole – like, very much of that day. I know we went up to the shop for a while and had a coffee at Colin's expenses while they did the paperwork. And then we came back. 1469 As to the "amount of credit" Ms Lourie understood she was seeking under the loan contract and whether it was $9,561.50 as recited in the Financial Table, or some other amount, Ms Lourie says she told Kevin or Colin: "just do it" and "they did the figures" (T, p 1292, lns 43-44; T, p 1293, ln 1) and "similarly with the repayments": T, p 1293, lns 3-4. 1470 Ms Lourie says that the "comparison rate" of 47.6384% was explained to her (T, p 1293, lns 12-18) although she cannot recall exactly what was explained to her about it. Ms Lourie says she recalls these things because she called her husband and made sure that he was "okay" with the payments, how much it was going to be and the interest. Ms Lourie accepted that there was "no negotiation" about the terms of the loan contract in the sense that she did not try to "haggle or bargain" with Colin about the terms because she "was happy" to be "getting a car" and she accepted she was happy about that because she "didn't think [she] would get one anywhere else": T, p 1294, lns 17-26. Ms Lourie said that whatever the terms of the loan contract were, she was basically prepared to accept them: T, p 1294, lns 28-29. Ms Lourie accepted that she was "quite anxious" to get a car for her husband and also, importantly, for her family: T, p 1294, lns 31-37. However, that did not mean that she was not paying attention to the document. Ms Lourie said that she "already knew what was on there": T, p 1294, lns 40-41. PART 28: THE EVIDENCE OF MS ANGEL POKIA 1471 Ms Pokia affirmed an affidavit on behalf of the respondent on 22 September 2014. 1472 In her affidavit, which is in brief terms, she says this. 1473 In "about September 2009" she purchased a Honda Civic Hatchback motor vehicle from Supercheap from the premises at Mulgrave Road, Earlville, Cairns. Prior to September 2009, she had no experience of "taking out a car loan" and she was advised by her brother that Supercheap was "a good place to purchase a car with finance because the payments were not too high". Ms Pokia's brother had previously purchased a car from Supercheap. Ms Pokia says that when she first attended the car yard in September 2009 she saw a Honda vehicle. She liked it and wanted to buy it. A salesman approached her and asked her to discuss, in the office, the possibility of purchasing the car. She cannot recall the name of the salesman. The salesman said that she could either pay for the car or "take out a loan to pay for it". She was told by the salesman that the deposit would be $1,000. She says that the salesman, in effect, introduced her to Mr Hulbert. Mr Hulbert took some information from her as to her income and personal expenses. He told her that he would obtain a credit check about her credit history and asked her to bring into the car yard proof of identity, bank statements, Centrelink statements and payslips to demonstrate her income. At this time, Ms Pokia was working in a casual position as a Shop Assistant at IGA in Cairns. She was also receiving Centrelink payments. 1474 Ms Pokia says that about a week after this discussion with Mr Hulbert (which in her affidavit she says took place in September 2009) she returned to the car yard and again met with Mr Hulbert. She provided him with the documents he had asked her to produce. She says this at para 11: Colin Hulbert showed me a document setting out terms and conditions of obtaining [a loan] and explained to me details about the cost of the vehicle, the amount of interest on the loan, the applicable interest rate, the total amount to be repaid, that a brokerage fee of $990 applied to the loan, and he told me the amount of fortnightly repayments. 1475 Ms Pokia says that Mr Hulbert told her to read the contract and to ask him questions about it if there was anything she did not understand. She asked Mr Hulbert about brokerage and says that she became aware, from reading the contract, that the brokerage fee was payable to Cash Brokers Pty Ltd. She says she signed the box on the contract indicating that she had elected not to seek legal advice. She says that after reading the contract, she initialled the pages of the contract and then signed it. She paid a deposit of $1,000.00 and took the car. She says that she experienced some problems with the car. It needed an "O-ring" for the distributor and the air conditioning had to be re-gassed. She says that these things occurred after the expiration of the warranty period. They were relatively inexpensive to have repaired. Ms Pokia says that the vehicle "had a major problem with the engine" in about September 2012, 12 months after the loan was paid out in September 2011. However, she did not have the engine attended by a mechanic. She says that she has no complaints about Supercheap or Mr Hulbert. She says that she had the use of the vehicle, enjoyed it, the repayments were reasonable and she continued to have the use of the vehicle for about 12 months after she had paid out the loan contract. 1476 The documents in the Court Book in relation to Ms Pokia are contained in Folder 18. The CBPL file contains a letter dated 17 August 2010 from Mr Humphreys to Channic requesting a loan on behalf of Angel Angira Ana-Hera Pokia for $3,990.00 and requesting repayments of approximately $100.00 per week. Thus, it seems that Ms Pokia's visits to Supercheap did not occur in September 2009. 1477 The file contains a Credit Application Form dated 16 August 2010 which recites income on behalf of Ms Pokia of $500.00 per week, as an employee of IGA. Ms Pokia was approximately 21 and a half years old on 16 August 2010. The Financial Information box on p 2 contains only one entry. It concerns the item "Rent/Mortgage". The amount is almost impossible to read. However, the total expenses are recited as "$620.00 per M" and thus the rent/mortgage amount seems to be $620.00 per month. No other expenses are recorded in the Credit Application Form in relation to any of the other categories of expenses recited on the form. 1478 The CBPL Preliminary Test is in these terms: Channic Pty Ltd PRELIMINARY TEST Date: 17/08/2010 Client Name: Angel Angira Ana-Hera Pokia Broker: Cash Brokers Pty Ltd Loan Purpose: Motor vehicle purchase $4,990 Cash Deposit $1,000 Capacity: Borrower 1 Income $2,166.00 Borrower 2 Income $0.00 Maintenance $0.00 total monthly income $2,166.00 Expenses Rent/board monthly $620.00 Living expenses $950.00 Single $950; Married/De facto $1,300; Each child $325 Credit Cards $0.00 Min 3% of Limit or $75 if no Credit Card Centrelink Advance $0.00 Other Finance $0.00 Contract Payments $0.00 Mobile Phone Prepaid repayment this loan $433.33 total expenses $2,003.33 Surplus/Deficit $162.67 I confirm the information input in this assessment is accurate based on the information I have been provided. K Humphreys Broker Signature 1479 On 23 August 2010, Ms Pokia entered into a loan contract with Channic described as Continuing Credit Loan Contract and Mortgage No: 5065. The loan contract contains the following financial information: FINANCIAL TABLE Amount of credit of the loan $5,001.50 Annual percentage rate 48% per annum Total amount of interest payable $1,659.16 Interest free period 0 weeks The maximum duration of any interest free period under the contract is Repayments Total number of repayments 67 consisting of 66 repayments each of $99.45 Plus a Final Repayment of $96.96 Total amount of repayments $6,660.66 Date of first repayment 28/08/2010 Frequency of repayment Weekly Credit fees and charges retained by us None Nil Disclosure Date - The information as shown is current at this date 23/08/2010 Note Subject to the General Conditions, we may change the way we calculate interest or how often we debit interest, the amount or frequency of any fees and charges (including the addition of new fees and charges) and the amount or frequency or time for payment or method of calculation of your repayments without your consent by giving you notice of such changes. Where we make such a change, we will notify you. End of Financial table 1480 The Comparison Rate entry is in these terms: Comparison Rate 47.1723% per annum This rate is calculated on the $5,001.50 credit amount over a 67 week term with the ascertainable credit fees and charges (if any) and repayment amount(s) and date(s) as stated in the Schedule. 1481 The entries from the top section of the schedule on p 2 of the Credit Contract are in these terms: Schedule Offer date 23/08/2010 Loan Draw Down Date 23/08/2010 Loan term commencing from the Draw Down Date 67 weeks Amount of credit to be paid on the Drawdown Date as follows: $21.50 1. To us for payment of all loan establishment fee(s) and charge(s) 2. To Cash Brokers Pty Ltd for Brokerage $990.00 Paid by EFT to BSB 0 Account 0 3. To Supercheap Car Sales for Car Purchase $3,990.00 Paid by EFT to BSB 0 Account 0 for the purpose of Car Purchase Payment Due Dates As per Schedule 1 Interest is calculated in accordance with Clause 5 of the General Conditions. … 1482 The CBPL file contains a letter from Mr Hulbert dated 17 August 2010 in response to the letter from Mr Humphreys for CBPL also dated 17 August 2010. In Mr Hulbert's letter for Channic, he tells CBPL that Channic has decided that the Credit Contract sought by Ms Pokia is "not unsuitable" for her. CBPL issued an invoice for brokerage fees of $990.00 on 17 August 2010. 1483 The Supercheap invoice recites the sale of a 1990 Honda Civic GL Red Hatchback 4 Speed Automatic 4-Cylinder vehicle. The odometer reading is recited as 306,587. The sale price of the vehicle is $4,803.00 including GST. The total price including registration fees, stamp duty and a title check is $4,990.00. 1484 In oral evidence, Ms Pokia gave the following evidence in answer to Dr Spence's questions. 1485 Ms Pokia is a Youth Worker. She went to Supercheap because her brother suggested going there. On that visit (the date of which she does not identify), she saw and liked the Honda Civic. She spoke to "Kevin" who had approached her. She asked him about the price and whether "they do repayments or finance". He said, "yes" and they went inside into the office to "talk about it". Before going inside, Kevin told her about the "details of the car, how many kilometres it had, the system, fuel and the sound system": T, p 1362, lns 14-43. When they went inside, Kevin directed Ms Pokia to Colin's desk. She sat down with Colin and "we discussed about the car and finance, repayments, ID": T, p 1363, lns 1-5. There was also discussion of "proof of income, payslips". At that time, Ms Pokia was employed by IGA in "fruit produce" and she was receiving Centrelink benefits. She says that at this meeting, Colin showed her "paperwork and the contract". He also "went through with her the credit check runs and what I had to bring in to be assessed": T, p 1363, lns 30-31; lns 45-47. Ms Pokia then left. 1486 She says she came back two days later with "bank statements, Centrelink statements, three payslips and [an] electricity bill [for] where I stay": T, p 1364, lns 3-5. Ms Pokia says that she had forgotten to mention in her affidavit that on this return visit, her sister-in-law, Georgina Bataillard accompanied her and was with her when Ms Pokia "was doing the contract": T, p 1360, lns 38-39. At this second visit, Ms Pokia paid a deposit of $1,000.00. Ms Pokia went through the contract with the help of her sister-in-law. Ms Pokia did not understand "some parts" of it. She said that her sister-in-law and Colin would "talk to me and break it down so I could understand it". She cannot remember the things that Colin told her. She signed it and, page by page, initialled it: T, p 1364, lns 30-47. She says that she was looking at the loan contract as Colin was going through it. As to her estimate of how much of the contract Colin "went through" with her, she said: "The whole lot": T, p 1365, lns 4-5. Ms Pokia says that Mr Hulbert "gave her options" and they were: "You can sign it now if you want or you can read it more – come back and read it more and then sign it later. It's up to you": T, p 1365 lns 10-13. As to her reflections about the transaction, looking back at it now, Ms Pokia said of it: "Good. I guess. I went back and bought a second car. If that makes any sense": T, p 1366, lns 7-9. 1487 In cross-examination, Ms Pokia continued to press her evidence and belief (set out in paras 2 and 3 of her affidavit) that she purchased the car in September 2009: T, p 1366, lns 45-46. Ms Pokia was taken to the Credit Application Form (Tab 3). She says that the handwriting on p 1 is not her handwriting. Ms Pokia acknowledged her signature on p 3 and a date of "16.8.10". Ms Pokia accepted that she had applied to Mr Hulbert's company for finance in 2010 for the purchase of the Honda Civic. Ms Pokia accepted that her earlier answer and her affidavit were incorrect in referring to September 2009. It should have been August 2010: T, p 1367, lns 9-46. 1488 Ms Pokia gave evidence that she and Mr Hulbert filled out the Credit Application Form together: T, p 1368, lns 13-14. At 16 August 2010, Ms Pokia was earning $500.00 per week from IGA and was obtaining Centrelink "Rent Assistance". Ms Pokia gave evidence that the totality of her expenses were her rental expenses of $620.00 per month. Ms Pokia was living in a shared house with her mother. Her mother was "pretty much" paying all her expenses. 1489 As to the chronology of events, Ms Pokia says in her affidavit that about a week after her first visit to Supercheap she returned and had the meeting with Mr Hulbert as described. In oral evidence, she said that she returned two days later. Ms Pokia was taken to this inconsistency and said that she did, in fact, return to the car yard two days later and "we discussed about the contract and the finances and stuff, and then I wanted to re-check with the documents that I had to take in … [and] I wanted to see if it was okay with the thousand dollars": T, p 1369, lns 39-43. 1490 Ms Pokia affirmed her earlier affidavit evidence that she also went back to the dealership a week after the first visit "to check and see if the documents were okay, the ones I was taking in, and if they were all there because I needed 100 points which is all the documents": T, p 1370, lns 2-4. Ms Pokia says that there were three occasions that she went to the car yard. On the first occasion she saw the car and had a talk about finance. On the second occasion, two days later, she returned and showed someone some documents. On the third occasion, a further few days after the second visit, she returned, provided bank statements, proof of ID and other documents and paid the deposit of $1,000.00. Ms Pokia gave evidence that until this third occasion, she had not provided Mr Hulbert with any proof of identity, bank statements or Centrelink statements or payslips. Nor had she paid the deposit. She said that at this third visit, she was told that the loan application had been approved. Then she signed the contract: T, p 1370, lns 17-30. The documents Ms Pokia took in that day were copied and the originals were handed back to her. Ms Pokia gave evidence that the sequence was that she handed over the documents she had taken in and sat down at a desk. The contracts had already been prepared. She started going through them page by page: T, p 1370, lns 37-44. 1491 Ms Pokia also gave evidence that on the occasion of her first visit, even before applying for the loan, she was shown the contracts. Ms Pokia believes that on the first visit to the car yard she made the application for finance (at Tab 3) although she cannot now remember when she signed the "Credit Application Form". Ms Pokia ultimately accepted, however, that she signed the form on 16 August 2010. Although Ms Pokia gave evidence that she was shown the loan contract on the first visit (T, p 1363, lns 26-31; T, p 1371, lns 41-43), she ultimately said that she could not be sure and could not recall: T, p 1371, lns 31-33. 1492 Ms Pokia was taken to the loan contract. She acknowledged her signature and the various places where the date, 23 August 2010, appears. She accepted that the third occasion was 23 August 2010: T, p 1372, lns 44-45; T, p 1373, lns 1-2. 1493 Ms Pokia was taken to a copy of the letter from Mr Humphreys to Channic dated 17 August 2010 (Tab 2) by which the application for Ms Pokia's loan is made. She was also taken to a copy of the letter from Mr Hulbert to CBPL also dated 17 August 2010 (Tab 10) by which Mr Hulbert tells CBPL that the assessment made by him is that the Credit Contract is "not unsuitable" for Ms Pokia. Ms Pokia could not recall receiving a copy of either letter: T, p 1373, ln 43; T, p 1374, ln 9. Ms Pokia affirmed her evidence that it was on the third visit to the car yard on 23 August 2010 that she was told that her loan application had been approved and that it was not until 23 August 2010 that she took in and handed over her documents requested by Mr Hulbert as earlier described: T, p 1373, lns 11-16. 1494 As to aspects of the transactions themselves, Ms Pokia gave evidence that prior to the third visit, Mr Hulbert had told her that the price of the car was $5,000.00. Ms Pokia was looking for finance "to cover the costings of the interest and the car". The first time that Ms Pokia became aware of the amount of credit she was obtaining ($5,001.50) was when she saw the loan contract on the third visit to Supercheap/Channic. Also, on the third visit, at the time she signed the loan contract, she was told the interest rate: T, p 1375, lns 37-41. Ms Pokia understood that the loan contract was the document by which she was buying the car and that there was some finance involved. On this third occasion, Mr Hulbert pointed out to Ms Pokia that a brokerage fee was payable. Ms Pokia said that Mr Hulbert mentioned it on the second occasion and explained it on the third. Ms Pokia understood that the brokerage fee was payable because "they've given me that loan, so like they're out of pocket for that kind of time so I'm just paying that brokerage fee": T, p 1376, lns 44-46. Ms Pokia thought that Supercheap was "taking the brokerage fee". Ms Pokia could not be sure whether what was talked about was "brokerage" or whether it was something to do with "mortgage": T, p 1377, lns 6-8. 1495 As to the process of signing, Ms Pokia says that Mr Hulbert sat across from her and pointed to each section of the contract as he was talking to her and then asked her to sign at the foot of each page. Ms Pokia says that she cannot recall Mr Hulbert talking to her about any specific or particular clause but rather "just that he spoke to [me] about it": T, p 1377, lns 26-27. 1496 Ms Pokia recalls that, on the purchase of the car, Mr Hulbert had told her the odometer reading: T, p 1377, lns 36-37; T, p 1363, ln 41. Ms Pokia could not recall how far the car had travelled. Ms Pokia disputed the proposition put to her by ASIC's counsel that the car had travelled over 300,000 kilometres when she bought it. She accepted that 300,000 kilometres was "a long way to travel". However, the Supercheap invoice recites an odometer reading of 306,587 kilometres. Ms Pokia accepted that she would not "now" buy a car with over 300,000 kilometres on the odometer. As to whether she would have done so "back then" (on 23 August 2010), Ms Pokia said she "didn't know". This seemed an odd answer since she had earlier asserted that she had been told the odometer reading. Although Ms Pokia gave evidence that Mr Hulbert had told her the odometer reading, she conceded that, at the time of the purchase, she did not know: T, p 1379, ln 24. Nor did she know whether a four cylinder petrol engine "would be much good after 300,000 kilometres": T, p 1378, lns 26-27. Nor did Ms Pokia have "any real idea about the value of the car" or whether it was "mechanically sound": T, p 1378, lns 26-31. 1497 Ms Pokia also says she paid out the Channic loan in September 2011. 1498 On 18 May 2012, Ms Pokia entered into another loan transaction with Channic to credit finance the purchase of another car, a 1995 Honda Accord Sedan. At para 17 of her affidavit, Ms Pokia says that the Honda Civic (the earlier car) had a "major problem with the engine" in September 2012, about 12 months after the payout of the loan. In oral evidence, Ms Pokia said that she did not buy the second car before the first car broke down. She bought it after that: T, p 1379, lns 12-14. 1499 Ms Pokia then gave evidence, however, that the first car broke down before the purchase of the second car and thus it must have broken down sometime before 18 May 2012, perhaps, "a little while before" (T, p 1379, ln 30) and not September 2012. That being so, the Honda Civic was functional for one year and eight months. In order to purchase the second car, Ms Pokia took a bank statement into Supercheap/Channic. A copy of that statement is at Tab 45. It shows that on 3 May 2012 a direct debit of $100.99 was paid to Channic. Ms Pokia accepted that that payment was in respect of the Channic loan for the purchase of the Honda Civic; that she was still paying out that loan in May 2012; and that her statement that the earlier loan had been paid out in September 2011 was wrong: T, p 1380, lns 1-2. That answer, in combination with others, led to these questions and answers at T, p 1380, lns 14-15; lns 28-31: Q: Is there much in your affidavit that you think is actually right, Ms Pokia? A: I'm not quite sure. Q: So it's fair to say, isn't it, Ms Pokia, that your recollection of the occasion when you went and entered into the first loan contract is very hazy? You have a very poor recollection of what happened on that day? A: Kind of, 'cause it blends in with the second one as well. Q: It does, doesn't it, because you came back and there was another occasion when you had a contract, as it's hard for you to distinguish what happened when? A: The approximately [sic] timing, yes. Q: It's hard for you to distinguish what happened on each occasion, that is, between the first contract and the second contract? A: Yes. [emphasis added] PART 29: THE EVIDENCE OF MR WAYNE MCKENZIE 1500 Mr Wayne McKenzie is a witness called by the respondent. Mr McKenzie affirmed an affidavit on 24 September 2014. In that affidavit he says the things set out below. However, I will separately address Mr McKenzie's oral evidence and the objection taken to the significant expansion upon his oral evidence beyond the matters described in his affidavit. 1501 Mr McKenzie says that in November 2011 he commenced employment as a Loans Adviser employed by Channic at the premises at 132 Spence Street, Cairns. He says that in July 2013, Channic moved its business premises to new premises at 168 Aumuller Street, Bungalow, Queensland. In July 2014, Mr McKenzie was appointed as a Director of Cash Providers Pty Ltd and Loan Providers Pty Ltd. 1502 Mr McKenzie says that in the period between November 2011 and about June 2013, he was "often present" when Mr Hulbert was "involved in the execution of loan contracts with purchasers of vehicles" at the business premises of Channic at 132 Spence Street, Cairns: para 5 of his affidavit. He says that during this period, Mr Hulbert conducted conversations with applicants for car loans at a desk in the "open-plan office at the front of the business premises", which was about three metres away from the desk at which Mr McKenzie worked: para 6. 1503 Mr McKenzie says that, in respect of these conversations, he "generally overheard most of the conversations between Colin Hulbert and each applicant" and he was "present in the office when these conversations occurred during the majority of Colin Hulbert's working hours": para 7. He says that, as to these conversations that he overheard, Colin Hulbert's conversations with applicants for car loans were "very similar" and these conversations "generally lasted for about an hour": para 8. 1504 Mr McKenzie says that in respect of these conversations that he overheard, Colin Hulbert was "at great pains to explain the terms of the loan contracts whenever an applicant indicated that they had an issue with understanding what a written term of the loan contract meant": para 9. He also says that a copy of the loan contract about which Mr Hulbert was speaking, was "handed to the borrower before or as soon as each borrower sat down": para 10. He says that when these conversations which he overheard occurred, Mr Hulbert would "provide a copy of a loan contract to an applicant and would also have with him a copy of the loan contract": para 11. 1505 Further, Mr McKenzie says that as to these conversations which he overheard, Mr Hulbert would "provide a copy of a credit guide to an applicant" and "tell borrowers that if there were any problems with the loan they could refer to the credit guide for assistance": para 12. 1506 Mr McKenzie also says that when these conversations which he overheard occurred, Mr Hulbert "would draw the applicant's attention to most of the terms contained on pages 1 to 7 of the loan contracts": para 14. 1507 Mr McKenzie also says that in this process of Mr Hulbert drawing an applicant's attention to most of the terms contained at pages 1 to 7 of the loan contracts, Mr Hulbert "would frequently ask applicants if they understood the terms of the contract listed on pages 1 to 7 of the contract, and ask if they had any questions about those terms": para 15. 1508 Mr McKenzie says that after the process of explaining the terms of the loan contracts and handing the borrower a copy of the loan contract as soon as the borrower sat down, Mr Hulbert "would refer the applicants to page 8 of the contract and tell them that they could take the contract away if they wished to seek legal advice about the contract": para 16. Mr McKenzie says that on some of the occasions on which Mr Hulbert had provided a copy of the loan contract to applicants, the applicants "would take a copy of the loan contract away for the purpose of seeking legal advice, but in most instances the applicants told Colin Hulbert that they did not wish to seek legal advice": para 17. 1509 Mr McKenzie also says that "at the end of the process" which he describes at paras 9 to 12 of his affidavit as described in these reasons, Mr Hulbert "would advise applicants that they could read the terms of the loan contracts itemised on page 9 to 16 [of the loan contract]; many of which terms Colin Hulbert had already explained to the applicant": para 18. 1510 Mr McKenzie also says that "at the end of the process" of handing the borrower a copy of the loan contract, handing the borrower a credit guide and drawing an applicant's attention to most of the items contained on pp 1 to 7 of the loan contract, Mr Hulbert "would explain to applicants the contents of pages 17-19" of the loan contract: para 19. Mr McKenzie says that "at the end of the process" of handing the borrower a copy of the loan contract, providing a copy of a credit guide to the applicant, explaining most of the terms on pp 1 to 7 of the loan contract and asking applicants if they understood the terms of the contract, Mr Hulbert "would explain to applicants the nature of the direct debit service agreement and the direct debit authority": para 20. Mr McKenzie says that at the end of each of these processes just described, Mr Hulbert would ask applicants this question: "Are you ready to sign up, or would you like to take the contract away to read it or get legal advice?" 1511 Mr McKenzie also overheard discussions between applicants for finance and Mr Kevin Humphreys in the period November 2011 to January 2012. Mr McKenzie says that he understands Mr Humphreys to have been an employee of Cash Brokers Pty Ltd. He says that he overheard Mr Humphreys "explain to applicants the requirement of payment of a brokerage fee to Cash Brokers Pty Ltd, as the stage of preliminary assessment of an applicant's application for a car loan": para 22. 1512 Mr McKenzie says that he remembers these "brokerage explanations" because "the concept of brokerage was new to me as it was not involved in my previous employment": para 23. 1513 Mr McKenzie says at para 24 that in the conversations which he overheard between Mr Hulbert and applicants for car loans in the period between November 2011 and January 2012, he overheard Mr Hulbert: … advise applicants for a car loan that a fee for brokerage in respect of the loan was payable to Cash Brokers Pty Ltd, that that fee was included in the total amount repayable under the loan, and that that fee was to pay for Kevin Humphreys obtaining approval for the granting of a loan by Channic Pty Ltd, and that the brokerage fee was a "once only" fee. 1514 Mr McKenzie also says that it was Mr Hulbert's "invariable practice when referring to pages 1 and 2 of the loan contract to also advise the borrower that the total amount to be repaid in accordance with the loan included disbursements and in particular the amount of brokerage as itemised in the contract": para 25. 1515 In oral evidence, Mr McKenzie gave the following further evidence in response to questions from Dr Spence. Mr McKenzie corrected aspects of his affidavit evidence about his early engagement with Mr Hulbert's companies. He said that he was employed by CBPL, the brokerage entity, not the lending company, Channic (as stated in his affidavit at paras 2 and 3): T, p 1299, lns 44-46; T, p 1300, lns 1-7. 1516 Mr McKenzie gave evidence that he was primarily employed, put simply, to engage with a range of lenders (banks, building societies, credit unions) in the provision of services to borrowers in connection with home loans and personal loans (T, p 1300, lns 41-42) through the vehicle of an entity called "Connective Services Pty Ltd". Prior to his employment by CBPL, Mr McKenzie had been Chief Accountant for Elgas in Sydney for six years. Before that, he was a Financial Controller for a manufacturing company in Papua New Guinea employing 300 staff with a turnover of $50 million. He had also worked for two banks, the Bendigo Bank and Queensland Teachers Credit Union for six years in all. He was primarily responsible for home loans and personal loans. 1517 Mr McKenzie says that at Spence Street the general office was relatively small. It contained three desks of reasonable size. Mr Hulbert had a relatively small separate office off to one side. The desks were about three metres apart from one another. 1518 Mr McKenzie says that he observed Mr Hulbert in a number of roles from November 2011 but primarily in "signing customers up to his finance company after they had been talked to by Kevin Humphreys": T, p 1302, lns 39-45. Mr McKenzie recalls 10 customers engaged in such a process with Mr Hulbert. 1519 Mr McKenzie was then asked to describe the process engaged in by Mr Hulbert in signing up customers for finance. He was also asked to describe "in more detail if you can" the "signing up process" in terms of the explanation of the contents of the pages of the loan contract and "when" the signing up took place. He was also asked to describe how long the "whole signing up process" took. Objection was taken by counsel for ASIC to the detail of these explanations by Mr McKenzie on the ground that the evidence in the proceeding was to be reduced to affidavits; Mr McKenzie's explanations went well beyond the affidavit; and the detail of Mr McKenzie's evidence was not put to the ASIC witnesses. Mr McKenzie's affidavit was drawn by Dr Spence. I have admitted Mr McKenzie's evidence in giving these further explanations. I weigh it in the balance conscious that it goes well beyond the affidavit. 1520 As to these matters, Mr McKenzie described the process entered into by Mr Hulbert in signing up customers for credit finance in these terms at T, p 1303, lns 11-33: My recollection was that Mr Hulbert would bring out a contract and the contract would be credit guides and the contract itself. He would produce one credit guide to the customer, if there was only one customer being signed up, and he would have one in front of him himself. He would get them to initial the credit guide and put it aside in his folder and then he would go through the loan contract with the customer. He would go through, basically, line by line on the first two pages, I think, because it seemed to be that he would talk about the amount of the loan, the interest rate, the amount of interest, the fact that the interest was already included in the repayment plan, which I think was included in the contract, when the repayment schedule started, when it finished, how often it would be, and he would work his way through that on those first few pages. When he came to the second page, he would talk about things like the disbursements, he would talk about the payment to Cash Brokers, and he would make some comment like, "Kevin would have already talked to you about the Cash Brokers payment and what it was for and how much it was for". If the customer asked any questions, then he would explain that, and then the payment in most cases was to the car sales company. The reason that I know that he talked about the amount of brokerage because, I think as I say in my affidavit, is that I had never heard of this brokerage fee and what it – what it related to in my banking background, so this was news to me, so I took particular notice that as soon as somebody talked about brokerage that I was listening to what it was all about because, quite frankly, I didn't know what it was. 1521 As to the position where these events occurred, Mr McKenzie said that there was a desk "off on a little bit of an angle to [Mr McKenzie]", diagonally to the right of where he sat, which was cleaned up each morning and generally kept tidy and clean. Mr Hulbert would sit at that desk. The customer would typically sit at that desk with his or her back to Mr McKenzie. Mr Hulbert was a little over about three metres away from Mr McKenzie: T, p 1304, lns 4-20. 1522 Mr McKenzie was asked how long the process he had just described took, in general. He said this at T, p 1303, lns 35-41: I think I say in my affidavit, from memory, that it took about an hour, but I would like to say that probably the signing up varied, depending on the number of customers there that were being signed up. If it was a joint application it would take longer, but if there was one customer there it would take about an hour. But the general signing up, also that hour would probably include things in regards to car insurance and signing them up in regards to that, because I think that was a requirement, which I didn't know about until I joined the company. 1523 As to copies of documentation, Mr McKenzie said this at T, p 1304, lns 39-44: Colin would normally walk out of his office with the contract and all the paperwork together and he would have – if there was one person being signed up, he would always have two [copies]. The first thing he did was hand a copy over to the customer, and he would have a copy in front of him. So if there were three people, he would normally have, normally – three. 1524 Mr McKenzie was asked to explain "in more detail, if you can, the signing up process in terms of contents of the first page … being explained, contents of the second page being explained, and when the signing up took place". He said this at T, p 1305, lns 3-34: Remembering that I had never looked at a contract before during this time, but I have had experience in regards to the minute contract since then [a form of credit contract]. But on the first two pages it covers the majority of the things that Colin would talk about. It talked about the amount of the loan, the amount of the interest that's being charged, the interest rate that's being charged. And he would go down in order in regards to what he would talk about. He would – they would talk about when the first payment was to go through, whether or not the payment was weekly or fortnightly, how much the repayments were. If there was a dishonour, how much the dishonour fees were. The second page he talked about the disbursements and how much brokerage was – was included, because I know that he would talk about that because I would also hear Kevin talk about a brokerage fee when he talked to customers. Colin often turned and said to the customer, "Now, you understand that your first payment would start on such and such a date and your last payment on such and such a date, that it's fortnightly; not weekly". And he would look for an affirmation from the customer. The customer would normally interrupt if Colin was going through and talking about something and he wanted some sort of elaboration in regards to it. If that occurred, Colin was fairly pedantic in regards to what he would say. If he was talking about dishonour fees, he would point out the fact that if you had a dishonour – knew that you didn't have the money in your bank account and you phoned up beforehand, there wouldn't be a charge. You could defer your payment, but it had to be at least 24 hours before the due date on a working day. That sort of thing where he would point that out to the customer … And there was also – he would point out that there was no deferral charge put through in regards to the customer. I took notice of this because I had never heard of anything that was on the minute contract. 1525 It was at the end of this evidence that objection was taken to the scope of the additional evidence. As I mentioned, I have elected to admit Mr McKenzie's evidence of these matters and I weigh it in the balance conscious that it goes beyond the relatively brief affidavit put on on behalf of Mr McKenzie. 1526 Mr McKenzie also began to give evidence of his understanding of things Mr Hulbert may have done concerning copies of the loan contract. Objection was also taken to evidence of this kind and Mr McKenzie was asked to confine his evidence to things he had heard or seen. He then said that he saw that the customer "had and walked away with the copy [of the loan contract]" and he saw Mr Hulbert put a copy of the loan contract "in the files": T, p 1307, lns 41-46. 1527 Mr McKenzie was also asked whether he was able to "say anything about what happened in relation to pages 4 to 7 of the contract" as an aspect of the discussions he was earlier referring to between Mr Hulbert and customers which he had overheard. Mr McKenzie said this in response to that question at T, p 1308, lns 15-22: Now, 4 to 7 would be before the financial health warning, so it would have been most of the things that you talk about on a minute contract, and I know more experience in regards to a minute contract. You talk in regards to those first two pages – it's covered in a lot more detail than in regards to those next pages … I would have known at the time, but I do know how a minute contract [operates] in the time after that. I never saw those contracts. 1528 Mr McKenzie was then pressed about the things Mr Hulbert might have said about pages 4 to 7 of the loan contracts and said this at T, p 1308, lns 26-33: The things that I remember was – the standout is the fact that he had a financial health warning and talked about that. And he also talked about the fact that they had a clause there where, if they wanted to take the contract away and get legal advice, they could, and if they didn't want to have any legal advice, they had to put a line through it and sign off in regards to it. They were the things that stood out in my mind. After that, I wouldn't – until he got down to things like the direct debit, which is at the end of the contract, I had no real recollection of what he said. 1529 As to p 9 and following, Mr McKenzie said this at T, p 1308, lns 39-42: What I'm conveying is the fact that I don't have any specific recollection in regards to what he talked about with the particular customers in regards to those pages, until he got to the direct debit at the end and he talked about that and he talked about the signing up process. 1530 Mr McKenzie was then asked whether he recalled "any conversation in general between Mr Hulbert and these customers, these 10 customers you referred to". Mr McKenzie gave this answer at T, p 1309, lns 2-19: At that particular point, it was the practice to turn around and say to the customer, "if you want to take this contract away and seek legal advice or talk about it overnight, you can do so. However, if you decide that you want to continue on and sign up, that option is available to you as well". That's about all I recall in regards to it … The things that I took note of was the fact that he talked about [brokerage] in the disbursements. He talked about the brokerage. In the period from November [2011] through to January 2012, he would have talked about Kevin, having already talked to the customer … He would have said something like, "Kevin would have already spoken to you about this brokerage fee that's mentioned here in regards to disbursement, X amount of dollars. Do you recall that?" And then he would – the customer would always make that affirmation, and then they would talk about the – the payment to the sales company … 1531 Again, an objection was taken to this evidence on the same ground as the earlier objection. Nevertheless, I have elected to admit the evidence recognising that all of these particular matters of detail ought to have been contained within the affidavits in the proper way. There is no doubt that the oral evidence went beyond the affidavit drawn by Dr Spence on behalf of Mr McKenzie. In many respects, the questions asked of Mr McKenzie amounted to: "Say whatever you can or whatever you like on topic X or topic Y". There is little point making directions orders for evidence to be put on in affidavit form if the oral evidence simply travels well beyond the limits of the affidavit. The general topic of Mr McKenzie having heard conversations between Mr Hulbert and some consumers and having seen things about the dealings between Mr Hulbert and some consumers is contained in Mr McKenzie's affidavit. Plainly enough, the real content of this evidence should have been properly addressed in the affidavit. 1532 I will now address the cross-examination of Mr McKenzie on these various matters. 1533 In cross-examination, Mr McKenzie accepted that he was speaking only about a period from November 2011 to the end of June 2012. He accepted that he could not recall Ms Toohey and that he "definitely" could not recall what was said to her or whether that person was male or female. Mr McKenzie accepted that although he could recall a "process", he could not recall particular people. He could not recall Ms Pokia in May 2012. He thinks he recalls the name Raymond at the "very, very end of June": T, p 1311, lns 22-47. Mr McKenzie gave evidence that he was the only employee of CBPL. He was an employee and not an independent contractor. He says he "probably" had "some dealings" with Mr Humphreys. He says that Mr Hulbert told Mr McKenzie "what to do": T, p 1312, lns 27-28; ln 31; ln 43. Mr McKenzie gave evidence that he did not know that the company which employed him was being investigated by ASIC until interviews were being conducted by the Australian Federal Police. Mr McKenzie said that he did not specifically discuss with Mr Hulbert the issues confronting the respondent companies and particularly CBPL, even though it was his employer. 1534 Mr McKenzie gave evidence that he had not "ever come to learn of brokerage as being fees payable in the course of financial transactions" (T, p 1313, lns 30-31) and added that he did not know that brokerage was charged on financial transactions and "not within a transaction like what we're talking about": T, p 1313, lns 35-37. Mr McKenzie was pressed about this matter and confirmed that in six years of banking experience he had never heard of brokerage being charged in loan transactions: T, p 1313, lns 41-43. Mr McKenzie said that he did not know, in terms of his banking business experience, that there were "mortgage brokers" in the marketplace offering mortgages and offering to broker mortgages for people: T, p 1314, lns 30-32. 1535 Mr McKenzie is a director of Cash Providers Pty Ltd. He is the only director. Mr Hulbert is a shareholder. So too is Mr McKenzie. Cash Providers has an Australia Financial Services Licence (a "credit licence"). The licence holder is Mr McKenzie. The licence was first used by the company in July 2014. Mr McKenzie is the only director of Loan Providers Pty Ltd. Mr Hulbert is a shareholder in that company. Mr McKenzie says that Mr Hulbert has no day to day part to play in how Mr McKenzie processes loans. 1536 Mr McKenzie was asked questions about the extended scope of his oral evidence. The proposition was put to him that in formulating his affidavit he was not able to remember the additional evidence about the explanations given by Mr Hulbert. Mr McKenzie said that he could "recall it now". Mr McKenzie accepted that he had discussed the case with Mr Hulbert. Mr McKenzie believed that there were simply more questions now being asked of him in evidence-in-chief that should have been asked earlier and in response he has given his best recollection: T, p 1317, lns 1-2; lns 20-23. 1537 Mr McKenzie was taken to the Veda Credit Check Report concerning Ms Toohey as an example of such a report (Folder 19, Tab 39). Mr McKenzie gave evidence that he had seen Veda reports before and, having been in the finance industry, he knew what they meant: T, p 1318, lns 14-20. In the example, the individual (Ms Toohey) has a Veda "score" of 110 and a "relative risk" of -22.2. Mr McKenzie accepted that "looking at that" he would accept that the rating was a "very, very bad credit rating". Mr McKenzie also accepted that the multiple credit defaults set out in the report underpin a "very, very bad credit history". Mr McKenzie understood that the lower the "score" (here, 110) on a range of zero to 1,200, the greater the risk to the lender: T, p 1319, lns 5-6. Mr McKenzie was asked to confirm whether his understanding of the "relative risk" (here, -22.2) meant that the higher a person is on that scale the safer that person is as a borrowing prospect. Mr McKenzie said, in answer, that he was "not sure" about that. Mr McKenzie was challenged about that answer because he had earlier said that he was familiar with Veda reports and he had accepted that the document suggested a very bad credit rating indeed. Mr McKenzie then accepted that "it wouldn't be a good report" (T, p 1319, lns 30-31); he "wouldn't lend to someone with this report" (T, p 1319, ln 35); and "one would think" that no prudent lender would lend to this person": T, p 1319, ln 37. He added, however, that a secondary lender like Mr Hulbert might lend where a "primary lender" would not: T, p 1319, lns 39-42. 1538 In cross-examination, Mr McKenzie was asked about his role at CBPL. Mr McKenzie commenced work at CBPL in November 2011. Mr Humphreys was also there for a short overlapping period from November 2011 to January 2012 when Mr Humphreys left: T, p 1317, lns 36-37; T, p 1328, ln 5. Mr McKenzie gave evidence that he did not, however, take over the work that Mr Humphreys had been doing at CBPL: T, p 1317, lns 39-40. When Mr McKenzie commenced employment at CBPL his job was to establish accreditation through the vehicle of Connective Services Pty Ltd ("Connective") with financial institutions so that CBPL could process (T, p 1328, lns 30-32) applications for home loans or personal loans (which might include loans to buy a car) to those institutions. Loans were processed through one of the finance companies accredited through Connective: T, p 1329, lns 1-2. Notwithstanding the role of Connective in the accreditation process, Mr McKenzie's role was to establish CBPL as a broking company so that it could handle loans made by or through particular financial institutions. That was so even though, prior to November 2011, Mr McKenzie had no experience of brokerage arrangements for these classes of loans. Mr McKenzie said that he understood the notion that "commissions" might be paid in connection with arranging a loan and "trailing" commissions might apply (related to events after the loan was entered into with a borrower) but those commissions were paid by the lender not the borrower. Mr McKenzie says that about 80% of his time was spent in "getting accreditations" which involved sitting exams and passing the testing procedures of the financial institutions which are designed to ensure that the person processing the loans understands those systems and how they operate. Mr McKenzie says that he was personally doing this work: T, p 1329, lns 20-33; lns 39-45. He says that doing this work required access to a computer and phone lines and that he did this work at the office using those office facilities. 1539 Mr McKenzie says that although he was engaged in this work, he says he sought to learn how Mr Hulbert went about "a sign up". He says that "every time some customer came in, [he] sat there and watched Mr Hulbert": T, p 1330, lns 31-32. Mr McKenzie accepted that "in hindsight" he "would" have put that down in his affidavit, although he did not: T, p 1330, lns 34-35. Mr McKenzie gave evidence that Mr Hulbert did not have a standard spiel although he had a spiel that "covered certain things on certain pages" of the loan contract "100 per cent of the time" and he said it "many times". Mr McKenzie says that he overheard Mr Hulbert eight to 10 or possibly only six to eight or 10 times, with consumers: T, p 1330, lns 45-47; T, p 1331, ln 4. Mr McKenzie says that on those occasions, Mr Hulbert came out of his office with loan contracts and credit card documents. Mr McKenzie does not know whether Mr Hulbert had other contracts or PAMD Act documents. Mr McKenzie does not recall hearing Mr Hulbert talk about any cooling off periods or documents required to be signed to satisfy the PAMD Act or the Motor Dealers Act requirements. He does recall discussion of a warranty. He does not recall any discussion of other purchase contracts. Mr McKenzie says that "certain things stuck" in his mind. He says that Mr Hulbert talked about the purchase price and "certain other things". Mr McKenzie recalls that the process from the time Mr Hulbert sat down with the customer until he got up from the desk was about one hour. Mr McKenzie says that during that period of one hour, Mr Hulbert made a telephone call to an insurer to see whether insurance could be obtained for the customer. The usual practice was to put the customer on the phone call to the insurer to verify the purchase and the phone would then be passed back to Mr Hulbert. During this hour, Mr Hulbert would talk about the disbursements including brokerage: "That would be the only time he would talk about brokerage": T, p 1333, lns 26-27. He would say: "Here's the amount that is payable to Cash Brokers Pty Ltd for X amount of dollars that's in regard to brokerage and Kevin would have spoken to you about that": T, p 1333, lns 30-32. 1540 As to loans processed to enable cars to be purchased from Supercheap, Mr McKenzie says that in his period at CBPL when loans were being arranged for customers for the purchase of a car from Supercheap, "once or twice", he thinks, a loan was obtained from a lender other than Channic. 1541 Mr McKenzie was always employed by CBPL. He was never an employee of Channic. He says that he did not assume the role formerly performed by Mr Humphreys. Nevertheless, Mr McKenzie had a role to play concerning transactions with some of the customers/borrowers called in evidence by the respondents (Ms Green, for example, who obtained her second loan in 2013). Mr McKenzie accepted that from July 2012 he could have been doing work that previously would have been done by Mr Humphreys: T, p 1322, ln 1; lns 9-10. 1542 Relevantly to the role discharged by Mr McKenzie, Mr McKenzie was taken to some of the CBPL policy documents informing suitable lending practices and financial affordability assessments. Folder 22, Tab 12 is a CBPL Loan Inquiry Checklist Policy Statement dated 14 November 2010. It attaches a Loan Inquiry Checklist form. Mr McKenzie understood that the document was to be used by CBPL for undertaking a loan inquiry. Mr McKenzie accepted that if CBPL was engaged, there should have been a completed template: T, p 1325, lns 5-6; lns 24-25. The form might be used for a preliminary or a final assessment by CBPL: T, p 1325, lns 1-2. Folder 22, Tab 14 is a CBPL Suitability Assessment Policy Statement also dated 14 November 2010. It attaches a Suitability Assessment form. Mr McKenzie accepted that if a transaction involved brokerage then this form ought to have been used: T, p 1325, lns 44-45. One such form would have been used by CBPL and one would have been completed by Channic as the lender: T, p 1326, lns 1-2. Mr McKenzie was taken to a Preliminary Test document for 2012 concerning Ms Green (Folder 17, Tab 42) which recites brokerage of $550.00. Mr McKenzie described this document as an affordability calculation. Mr McKenzie accepted that he signed the document: T, p 1326, ln 20; lns 31-35. He accepted that the suitability assessment form ought to have been used by CBPL: T, p 1326, lns 23-25. Mr McKenzie said that he could not recall having done the assessment: T, p 1326, lns 39-40. Mr McKenzie accepted that the checklist at Folder 17, Tab 39 was the type of checklist he might have had before him. Mr McKenzie accepted that he made an assessment of the affordability of the proposed loan to Ms Green the subject of her credit application dated 3 January 2013: T, p 1327, lns 14-16; ln 21; lns 26-30. Mr McKenzie accepted that in this particular case, he did not follow the policy document (T, p 1327, lns 41-42) and added that it "could be an oversight on my behalf". PART 30: THE EVIDENCE OF MS GEORGINA BATAILLARD 1543 Ms Georgina Bataillard is a witness called by the respondent. She too overheard conversations that Mr Hulbert had with consumers. She gives this evidence in her affidavit affirmed 23 September 2014. 1544 Ms Bataillard was employed as a book-keeper for Supercheap from 22 August 2010 until about 1 July 2013. Since then she has been employed as a book-keeper for Channic. She has also worked, for some periods, as a book-keeper for CBPL. As at 22 August 2010, Supercheap operated from premises at 484 Mulgrave Road, Earlville and Ms Bataillard worked from those premises until 25 June 2011. In about September 2011, Supercheap moved to 132 Spence Street, Cairns and Ms Bataillard worked from those premises. In June 2013, Supercheap ceased trading in the sale of used cars. In 2013, CBPL did not renew its licence to conduct a brokerage business. Since July 2013, Ms Bataillard has provided book-keeping services to Cash Lenders Pty Ltd and Cash Providers Pty Ltd at premises from 168 Aumuller Street, Bungalow, Queensland. 1545 Ms Bataillard says that in the period that she was in employment as a book-keeper for Supercheap at the Mulgrave Road premises, those premises contained a large office area without any room-dividers. Ms Bataillard's work area was near the front windows facing onto the car yard. She says that Mr Hulbert sometimes worked at the same work area as Ms Bataillard. However, when Mr Hulbert conducted interviews with prospective borrowers, Mr Hulbert interviewed them at a desk at the back of the office space. She says that the distance between the desk where Mr Hulbert interviewed prospective borrowers and the desk at which she worked was about three metres. 1546 Ms Bataillard says that during the period 22 August 2010 to 25 June 2011, when working at her desk, she "overheard numerous conversations" between Mr Hulbert and prospective borrowers, when Mr Hulbert conducted discussions with them: para 14 of her affidavit. On average, there were one to two such discussions per day which she overheard. Ms Bataillard says that these discussions which she overheard in this way "always lasted almost two hours": para 15. Ms Bataillard says that on these occasions she "noticed", that is to say, saw, that both Mr Hulbert and the prospective borrowers each had a copy of a loan contract and that Mr Hulbert "occasionally pointed to parts of the loan contract": para 16. Ms Bataillard says that, on these occasions, she noticed that Mr Hulbert "asked the prospective borrowers to read the loan contracts". She also says that on these occasions, as Mr Hulbert "explained the contracts to the prospective borrowers Colin regularly asked if the prospective borrowers had understood relevant parts of the loan contracts": para 18. Ms Bataillard adds that on these occasions (and she is always talking about the period 22 August 2010 to 25 June 2011 at the Mulgrave Road premises) she "observed that Colin Hulbert was at pains to slowly and carefully explain each page of the contract and the terms contained therein to each borrower, and to take note of and react to any difficulty in understanding the loan contract" [emphasis added]: para 19. Ms Bataillard also says that during these occasions, she "did not observe Colin Hulbert to bully any of the prospective borrowers into entering the relevant loan contract, and I never observed any dispute or argument occur between Colin Hulbert and the borrowers" [emphasis added]: para 20. Ms Bataillard also says that the process just described were processes "regularly engaged in by Colin Hulbert and quickly became his routine practice": para 21. She also says that when Mr Hulbert engaged in these processes and enquired of the prospective borrowers whether they understood a particular term of the contract, "the borrowers almost always answered yes": para 22. 1547 Ms Bataillard gave oral evidence about these matters as well. 1548 She says that she works for quite a few companies for Mr Hulbert and mentions Cash Lenders, Loan Providers and an entity called Online Trading. Ms Bataillard says that she is "self-employed" as a book-keeper and that Mr Hulbert is her client. She does the book-keeping work for Cash Lenders and Mr Hulbert is the contact for that company. She does the book-keeping work for Loan Providers and Mr McKenzie is the contact for that company. As to the period when she was doing work for Channic and CBPL at Mulgrave Street and Spence Street, Ms Bataillard did not come into work at set times each day. She worked for Supercheap for a long time: T, p 1343, lns 16-39. Ms Bataillard said that in relation to Supercheap she was required to bring the books of account up to date. When she began doing work for Mr Hulbert, the books of account were "two years behind" at Supercheap and it took her four years to bring them up to date: T, p 1355, lns 28-30. Mr Hulbert ran those two last companies. Mr Humphreys worked for Cash Brokers and in the day to day running of the business he was under the direction of Mr Hulbert. Ms Bataillard said that in the early days of her engagement with Mr Hulbert, she was attending to some outstanding matters on behalf of Channic with the ATO and was chasing up borrowers who had missed payments from week to week. There were about 12 or 13 borrowers that she chased up every day who had failed to make payments or whose direct debits had been dishonoured: T, p 1345, lns 1-2. 1549 Ms Bataillard confirmed that she overheard customers at the rate of about two customers a day (T, p 1339, ln 37) although it may have been "roughly two to three a day": T, p 1340, lns 27-29. As to the period over which she overheard and saw these daily conversations, she gave evidence that she heard and saw these things "ever since I have been working there as a book-keeper": T, p 1340, lns 8-9. She said that the period she was talking about was from August 2010 to July 2013 when Supercheap, Channic and CBPL left the premises at 132 Spence Street, Cairns. This period goes beyond the period mentioned in her affidavit which was confined to the period from 22 August 2010 to 25 June 2011 concerning events which she overheard and saw at 484 Mulgrave Road, Earlville. 1550 When asked how long the conversations took which she overheard and saw, she said they took "roughly an hour to two hours": T, p 1340, lns 36-38. Ms Bataillard said that Mr Hulbert had his "paperwork contracts for himself and the customer" and as to the conversation (T, p 1340, lns 45-47; T, p 1342, lns 1-2): It was a routine thing, so he was explaining the contract, confirming their details. Also, confirming the details, the amount of the loan, as well as the brokerage fee, the repayment schedule, details of the loan. Also, advise the customers that they could go and get some legal advice if they wanted, and the term of the loan as well. 1551 Ms Bataillard gave evidence that she could see the customer and Mr Hulbert signing the contract and that occurred "throughout the conversation": T, p 1341, lns 26-27. As to the extent of the conversation that she heard, Ms Bataillard said this: "… in the office you could hear everything in our office, so [I] would hear every customer and Colin": T, p 1341, lns 31-33. 1552 In relation to the interviews with customers about living expenses, Ms Bataillard recalls that these interviews were conducted by Mr Humphreys. Mr Hulbert did not do those interviews. Mr Hulbert would do the contract when the time came to sign up the various documents: T, p 1346, lns 44-47; T, p 1347, lns 1-4. As to the conversations Ms Bataillard spoke about, she said that although she was paying attention to her book-keeping duties and other tasks, she "listened to most of them" and said that she heard the conversations: T, p 1347, ln 37; ln 46. Ms Bataillard was interviewed by ASIC in relation to these matters in 2012. Ms Bataillard gave evidence that she could not remember her interview with ASIC as it was "a long time [ago]" even though it was in 2012. Ms Bataillard said that she could remember going to an interview with ASIC and she remembers some of the questions asked of her. She said that she could not recall being asked how long the interviews that Mr Hulbert conducted with customers took. She accepted that when that question was put to her in the course of the interview she said this: "Oh, I don't know. It takes ages sometimes"; "An hour, two hours?"; "Yes. I didn't – I don't really take much notice". In the light of that exchange in the course of the earlier interview, the following exchange occurred with counsel for ASIC in cross-examination at T, p 1348, lns 30-45: Q: That's the truth, isn't it? A: That's my answer. Yes. Q: No. That's the truth isn't it? A: That's what I gave you. That's the answer. Yes. It is the truth. Q: You were under oath at the time? A: It is the truth. Yes. 1553 Thus, the position is that Ms Bataillard did not really take very much notice of the time the conversations took between Mr Hulbert and each customer when those conversations took place. Ms Bataillard was also taken to her statement at para 15 of her affidavit that the interviews conducted between Mr Hulbert and each customer/borrower "always lasted almost two hours". Ms Bataillard responded by saying that the interviews took "one to two hours". Counsel for ASIC put to Ms Bataillard that that answer was not what she had said in the affidavit but rather she had said that the interviews always lasted almost two hours, not one to two hours. Ms Bataillard responded: "It lasted almost one to two hours, so almost two hours". In expressing these views, Ms Bataillard was talking about the time Mr Hulbert spent discussing "only the loan contract" with each customer/borrower: T, p 1349, lns 43-46. Ms Bataillard gave evidence that she knew that there was a loan contract but she did not know what other documents there might have been. She said that she "only heard Colin speaking about the loan contract": T, p 1350, lns 27-30. Ms Bataillard was then asked this question: "Okay. And you would agree you weren't paying much attention to what was going on?" She responded: "Yes": T, p 1350, lns 32-33. Ms Bataillard later in her evidence initially again said that in the exchanges with Mr Hulbert and customers she was paying attention "most times" to what Mr Hulbert was doing when talking to the customers. Ms Bataillard was taken to her earlier evidence and then again accepted that she did not take much notice of what Mr Hulbert was doing: T, p 1352, lns 20-26. Ms Bataillard said that she could not recall what the shortest time might have been that a conversation took place between Mr Hulbert and a customer/borrower in relation to the loan contract although she said that "he has never had a short time doing the contracts": T, p 1351, lns 6-9. As to the method, Ms Bataillard accepted that Mr Hulbert had "a standard speech to tell [customers] about the [loan] contract" and it was to this effect: "This is this. This is that": T, p 1351, lns 16-18. When the customer and Mr Hulbert got to the end of a page they would sign the contract if it was required to be signed by Mr Hulbert and similarly the borrower would sign if required to do so and then they would "move onto the next page". Ms Bataillard said that she "could see that": T, p 1351, lns 23-29. 1554 This proposition was put to Ms Bataillard by ASIC's counsel: "You didn't stop to see whether Mr Hulbert was paying close attention to see whether the customer understood the contract or not?" Ms Bataillard responded by saying: "I don't pay attention to that": T, p 1353, lns 17-20. In light of that answer, Ms Bataillard was taken to para 19 of her affidavit in which she says that she observed that Mr Hulbert was at pains to slowly and carefully explain each page of the loan contract and the terms contained therein and to take note of and react to any difficulty the customer might have had in understanding the loan contract. Counsel for ASIC put to Mr Bataillard that those words in para 19 were not her words. She said that they were her words notwithstanding that she had just given oral evidence that she did not pay attention to whether the customer understood the loan contract or not. She said that she thought she was saying that she did not "pay attention directly to Colin". Ms Bataillard accepted that she was sitting at her computer; doing her work as a book-keeper; the work was essential; it had to be accurate; and she was paying close attention to her work. She accepted the proposition put to her by ASIC's counsel that she would not have been "terribly concerned with what's happening behind her". As to whether she was "terribly concerned with what someone was doing at another desk", she said: "At times I do": T, p 1353, lns 43-46; T, p 1354, lns 1-10. However, Ms Bataillard said that Mr Hulbert, in undertaking this process, engaged in "a regular routine" and "it was very slow" and "I would always hear it in the office": T, p 1354, lns 13-20. 1555 As to the approvals and whether or not customers obtained 20 minute approvals, Ms Bataillard said that she could not comment upon observing or overhearing how long approvals took. That was because approvals were done by Mr Humphreys. Mr Hulbert would do the loan contract and the loan contract was done after the approval had been obtained. Ms Bataillard said that Mr Humphreys had a desk "right near" Ms Bataillard's desk and Ms Bataillard accepted that credit applications were done by Mr Humphreys at the desk. Ms Bataillard accepted that she saw some customers obtain "same day approvals" and that "for quite a few people", they would "come in, make their application, pay a deposit, and then quickly the documents would be prepared; and they would sign up straightaway; and take the car": T, p 1356, lns 35-43. PART 31: THE EVIDENCE OF MR HAYDN COOPER 1556 Much of the evidence given by Mr Cooper by his affidavit sworn on 27 September 2014 was the subject of objection by ASIC. Argument was heard about those matters and rulings were made on 10 February 2015 supported by reasons. Mr Cooper is a witness called by Dr Spence for Channic. Mr Cooper is a director of Perscot Pty Ltd which is a trustee of a trading trust operating under the name Min-it Software. The company provides loan management software services to credit providers. Mr Cooper says that in this role he deals with many credit providers and credit assistance providers. Some are clients of Min-it Software. He also deals with lawyers concerning questions relating to the NCCP Act. 1557 Mr Cooper says that Channic is a client of Min-it Software. He says he knows Mr Hulbert to be a director of Channic. He says that since May 2010, Channic has been a user of Min-it Software system documentation and Min-it Software system "loan management". He says that, in that capacity, Channic was systematically provided with Min-it Software credit documentation including a document entitled "Consumer Loan Contract and Mortgage". Mr Cooper says that this document is a "standard template" document varying only to reflect the particular borrower and "the loan amount, loan repayment, loan term details and the inclusion of relevant terms and conditions affecting any security of the loan they [the borrowers] have negotiated with Channic": para 14. Channic sought to put on much evidence about the use of the template contract by credit providers and the number of loans under management by lenders using Min-it Software documentation and the evolution of the contract template document. 1558 The question of whether the contract is comprehensible (or not) to a reasonable person is a question of construction for the Court and the question of whether the contract is a just commercial document (or not) is a function of the use of the particular document having regard to its terms in the particular circumstances of its use in each transaction engaging specific parties (lender, customer, broker) in the context of all the relevant circumstances. To the extent that Mr Cooper's affidavit evidence sought to suggest, by inference, that use by a significant number of credit providers gave rise to an inference that there was or could be nothing unjust or unconscionable about its use in relevant circumstances, the evidence does not give rise to a probative inference of that kind and Mr Cooper's opinions are not admissible. 1559 In the result, Mr Cooper's affidavit was admitted with the challenged paragraphs struck out. The applicant accepted that the loan contracts used by Channic for each of the consumers in issue in the proceeding were supplied by or based upon the template supplied by Mr Cooper's company and thus Mr Cooper was not required for cross-examination. PART 32: THE EVIDENCE OF MR SPIRO VASILAKIS 1560 Mr Spiro Vasilakis is an expert valuer called to give evidence by ASIC. Mr Vasilakis affirmed an affidavit in the proceedings on 1 August 2014 to which he attaches a Valuation Report in relation to 10 motor vehicles the subject of purchase transactions with the 10 consumers the subject of the proceedings in respect of which ASIC asserts the relevant contraventions against Channic, CBPL and Mr Hulbert. Mr Vasilakis also put on a further affidavit affirmed on 29 October 2014 in which he responds to aspects of propositions set out in an affidavit from Mr Greg Reid affirmed on 25 September 2014 in response to the first affidavit of Mr Vasilakis. As things transpired, Mr Reid declined to come to Court with the result that Mr Reid was not called by Dr Spence: T, p 1298, lns 22-23. 1561 Mr Vasilakis says that he has given valuation evidence of motor vehicles before courts in Melbourne and Sydney between 20 and 30 times. He has prepared hundreds of valuation reports of motor vehicles and has been providing "expert reports" in relation to the valuation of motor vehicles for over 10 years. He is a Motor Vehicle Inspection Officer for "VIP Automotive Solutions Australia". In terms of his general experience in the valuation of motor vehicles, he says that he has been undertaking valuations for 20 to 25 years. In appraising motor vehicles he checks all of the relevant identification markers, the odometer reading, the quality of the paintwork, the panel alignment, the panels, the chassis, any rust concerns, the operation of the engine, the drive train, the vehicles, tyres, brakes etc and then makes a report which provides a valuation range. 1562 In terms of the general method, Mr Vasilakis says that when he is asked to value a car, the first thing he would normally do is "actually sight the car". He then undertakes an appraisal process addressing all of the matters just mentioned. He would then road test the vehicle and photograph it as well. Once Mr Vasilakis has undertaken his own appraisal, he then refers to indexes such as "Glass's Guide" (the "Guide") and "The Red Book". Glass's Guide is an index which is published monthly. It has been available in the market and to industry participants for more than 20 years. It is a guide which sets out the make and model and "entry level" of each motor vehicle and the prices that applied to them when they were new. It shows the value of each such vehicle at the particular current month. It shows how many kilometres such a vehicle ought to be showing, approximately, at that point in time, having regard to benchmarks of the number of kilometres a vehicle travels on average in Australia. The guide contains what Mr Vasilakis describes as a "retrospective history" for a vehicle up to 10 years. To take the example of a motor vehicle which entered the market in 1997, that vehicle will still be listed in Glass's Guide for 2007. It will give a price. It will tell the enquirer the price of the 1997 motor vehicle when it was new and a price in the relevant month of the Guide 10 years on. It will also show the approximate number of kilometres the vehicle ought to have travelled on average, 10 years on. The general formula adopted by the authors of the Guide is that every three months, a vehicle's odometer reading is adjusted by 5,000 kilometres. That follows because, on average, vehicles in Australia travel 20,000 kilometres every 12 months. For every 5,000 kilometres travelled every three months the price of the vehicle is reduced by $100.00. In order to determine a contemporary price, in say 2010, using the Guide, for a particular car manufactured in 1997, the method would be to go to the last published index of the Guide in 2007 and identify the price nominated in the Guide. The next step would be to identify every subsequent quarter up to the relevant point in 2010 and add 5,000 kilometres for each quarter. In the example, there would be three years between 1997 and 2010 and thus, 12 quarters with the result that 60,000 kilometres would be added to the 2007 nominated kilometres in the Guide. The price nominated in the 2007 Guide, at the relevant quarter, would then be reduced by $100.00 for every one of those 12 quarters. A price for that car would then be determined in the relevant 2010 quarter. 1563 Mr Vasilakis says that the average kilometres travelled by a car in Queensland according to the Australian Bureau of Statistics ("ABS") is 27,000 kilometres which takes into account both regional and city driving. The average in Australia over every State is 20,000 kilometres per year. Thus, in determining the market price (and thus market value) of a vehicle in Queensland, the valuer might adjust for a higher number of kilometres travelled if the valuation is relevant to a sale of a car located in Queensland. 1564 Mr Vasilakis says that The Red Book operates in precisely the same way. They are "exactly the same": T, p 762, ln 34. Mr Vasilakis says that these two publications have been industry accepted sources since at least 1977: T, p 762, lns 36-38. 1565 Mr Vasilakis attaches to his affidavit a copy of an instructions letter from ASIC setting out the scope of the inquiry he was asked to undertake. Mr Vasilakis was asked to express an expert opinion on value, directed to particular questions, in relation to each of the vehicles in the following schedule described as Appendix A to the letter: Vehicle Date of Sale Comments 1. 1997 Holden Commodore Executive VT 16 September 2010 • The wheels were cracked and were required to be replaced at a cost of $180 each; • The front passenger door did not open, and once repaired, the window winder was broken; • The car had paint damage for which the purchaser was quoted $800 to repair; and • The spare tyre of the car was flat. 2. 1998 Toyota Camry V20R 16 July 2010 No comments, please disregard Question 2 for this vehicle. 3. 1997 Ford Fairmont Ghia EL 20 September 2010 • The car was defective in that from the time that the purchaser acquired it, it would regularly break down and require towing; • The car did not come with a jack; • The spare tyre of the car had a nail in it. 4. 1990 Ford Spectron Wagon 22 September 2010 • The car was defective in that from the time that the purchaser collected it, it made a strange noise when the ignition was turned on; • The car was defective in that from the time the purchaser acquired it, it would regularly not start; and • Sometime prior to June 2011, the Ford Spectron broke down again and remained in the purchaser's driveway for a period of approximately two months. 5. 1997 Hyundai Elantra Sedan 12 July 2010 • The wheels were cracked and were required to be replaced at a cost of $180 each; • The front passenger door did not open, and once repaired, the window winder was broken; • The car had paint damage for which the purchaser was quoted $800 to repair; and • The spare tyre of the car was flat. 6. 1993 Holden Barina Hatchback with manual transmission 29 September 2010 • The horn did not work; and • The indicators did not work. 7. 1994 Holden Apollo Sedan 5 Speed Manual 10 December 2010 • The car was defective in that from the time that the purchaser acquired it it would regularly break down and require towing; • The fan belt snapped after one week of purchase; • The car regularly overheated; and • Sometime in late 2011, the Holden Apollo broke down again and was abandoned at a mechanic's garage in Edmonton. 8. 2001 Holden Commodore VX Wagon 15 April 2011 • The car when delivered was missing a number of wheel nuts from one wheel such that it shook violently when driven; • The car did not come with a jack handle; • The radiator system leaked constantly; • The head gasket was defective and within two weeks from delivery of the car the head gasket blew requiring replacement; and • The engine constantly overheated due to a faulty radiator fan. 9. 1995 Mitsubishi Pajero GLX 2 March 2011 • Within several months of the purchasing this vehicle the fan belt broke; • The car had rust inside; • The radiator of the car leaked and continues to leak; • Within 10 months of acquiring the car, it required two new tyres; and • Three of the four power windows did not and do not work. 10 1996 Hyundai Excel 25 June 2012 • After the purchaser took possession of the car on 29 June 2012, the car broke down by 2 July 2012; • After the car broke down it was collected and then kept for 2 days for repairs; • After the purchaser took possession of the car again following the repairs, it broke down at the traffic lights immediately after departing from the repairer and had to be towed back to the repairer where it remained for repairs for approximately 2 weeks; and • The ignition required replacing. 1566 The relationship between each of these 10 vehicles in Appendix A and each of the consumers is set out in the following schedule: Appendix A Vehicle Number (as above) The Relevant Consumer Vehicle 1 Donna Gayle Yeatman and Farren Yeatman Vehicle 2 Muriel Grace Elizabeth Dabah and Estelle Harris Vehicle 3 Prunella Kathleen Harris Vehicle 4 Rhonda Lorraine Brim Vehicle 5 Adele Dorothea Kingsburra Vehicle 6 Vance Henry Gordon and May Estell Stanley Vehicle 7 Charlotte Mudu and Aaron Elliott Vehicle 8 Kerryn Gerthel Smith Vehicle 9 Joan Cecily Noble and William Damien Noble Vehicle 10 Leandrea Rose Raymond 1567 A substantial volume of documents identified by reference to an index was provided to Mr Vasilakis in relation to each of the vehicles. Question 1, asked of Mr Vasilakis, is in these terms: Please provide your opinion of the market value of each of the vehicles as at the date of sale indicated in Appendix A. In respect of each vehicle please provide a value referable to a car of that type, make, model, odometer reading and year which is in: • poor but saleable condition • in average condition; and • in good condition. In all cases would you give the valuation of the vehicle on the assumption that it was located in Cairns, Queensland? In relation to Question 1, we ask you not to consider the vehicle defects listed in the column headed "Comments" in Appendix A. Please provide reasons in support of your valuation. 1568 Mr Vasilakis was also advised that if he considered it appropriate to do so, he may wish to provide a valuation range for each value within the three categories. For example, if he believed that the particular car was of "average quality" he might elect to adopt a range of values within that category. If Mr Vasilakis elected to provide a range of values, he was to indicate, if possible, the statistical likelihood of the vehicle falling within a particular range based on information made available to him. In providing reasons for his valuation, he was asked to specifically indicate whether he had regard to the odometer reading, the date of manufacture, vehicle parts fitted to any particular vehicle as indicated by the attached volume of documents and any information discernible from the vehicle identification number. Mr Vasilakis was also asked to indicate whether he had made reference to any industry guides or publications in deriving his valuation. Further, he was asked to consider whether the circumstance that each of the vehicles are located in Cairns, Queensland, has any impact upon his valuation of each vehicle. 1569 Question 2, asked of Mr Vasilakis, is in these terms: Please provide your opinion of the market value of each of the vehicles at the date of sale indicated in Appendix A assuming: • the vehicles were in average condition for their age and odometer reading; and • that the vehicles were in Cairns, Queensland; and • the vehicles also had each of the defects listed in the column headed "Comments" in Appendix A. Again, if it is more appropriate to identify a range of values for the vehicles in question, please do not hesitate to provide such a range, explaining the reasons for the range. In this respect we acknowledge that the identified defects are, in some instances, identified in a general way. It may be appropriate for you when expressing your opinion to make various conclusions as to value depending on the nature and extent of the defect with the result that it may be appropriate for you to identify more than one value or range of values. In relation to Question 2, we ask you to have regard to all the information and instructions mentioned in relation to Question 1. 1570 Mr Vasilakis was advised that the documents in the folder (Vol 3 of the Court Book) include receipts for motor vehicle parts alleged to have been fitted to each vehicle. Mr Vasilakis was instructed to assume, when making his valuations, that these parts actually had been fitted to the vehicles. If there was any inconsistency about that matter, Mr Vasilakis was asked to indicate that matter in his report. Mr Vasilakis was also given general instructions about the task consistent with the Federal Court Practice Direction about expert evidence. 1571 In response, Mr Vasilakis submitted 10 valuation reports all dated 28 July 2014. Each report sets out the vehicle identification number, engine number, engine capacity, form of transmission, colour, odometer reading, date of sale and sale price. 1572 The first report relates to Vehicle 1 in Appendix A. Mr Vasilakis sets out the purpose of the report in these terms: The purpose of this report is to estimate the combined Fair Market Value of the motor vehicle/s described herein, at the date of sale, in Cairns Queensland. The Fair Market Value of a vehicle, is the highest price on the date of valuation that would be agreed to by a seller, being willing to sell, and a buyer, being willing to buy, under no particular necessity for so doing, in an open and free market, with each party dealing with the others full knowledge and disclosure, of all uses and purposes for which the vehicle/s is reasonably adaptable and available to. 1573 As to the method, Mr Vasilakis says this in his report: The value is estimated utilising current market data comparisons, supplemented by cost information. The vehicle is compared, where possible with others similar for sale and/or sold in the general time period. Adjustments are made for differences in equipment, odometer reading, originality, conversion, modifications and current economic conditions at the time of sale. Information including, vehicle identification numbers, serial numbers, engine numbers, engine displacement, component serial numbers, colour codes, paint codes, trim codes, component stampings, data tags, date codes, badges, emblems, owner history and odometer information provided by the owner; or parties to sell; or others; or displayed on the appraised vehicle or components are assumed to be reliable, correct and truthful, as accuracy is not checked or guaranteed for originality or authenticity. 1574 Mr Vasilakis also observes that the views and opinions he expresses are based upon information provided by ASIC and in reliance upon the letter from ASIC dated 23 June 2014. Mr Vasilakis also observes that each particular vehicle "has not been sighted physically by the author". 1575 As to Question 1, Mr Vasilakis sets out the following opinion in respect of Vehicle 1: SUMMARY Vehicle Comments: The odometer reading for this vehicle [359,395 kilometres] is considered HIGH for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $8,267.00 - $9,500.00 being in good condition $7,033.00 - $8,266.00 being in average condition $5,800.00 - $7,032.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. 1576 As to Question 2, Mr Vasilakis said this: With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The air-conditioning was not working, the windows would not go all the way up and the car did not have a spare tyre. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1577 As to the valuation, Mr Vasilakis attaches a document which identifies seven matters relevant to the valuation. The first concerns the ABS statistics about kilometres travelled on average in Queensland and in Australia. The second concerns population statistics for Cairns in the period 2009 to 2010 ranging between 164,354 to 167,939 people. Mr Vasilakis considered that Cairns reflects a stable market of supply and demand for Vehicle 1. The third concerns the publications to which Mr Vasilakis had reference including Glass's Guide for March 2003, March 2005, March 2007, December 2008, October 2010 and February 2011, period classified publications, online classifieds such as "Carsales.com". The fourth concerns the observation that the vehicle remains "unsighted both physically or by photographic evidence, by the author". The fifth concerns the notion that where a specific model is not stated, the base model in that production year model range was used as the basis for the valuation. The sixth concerns the notion that all values are inclusive of GST and the seventh concerns a CV reference document about Mr Vasilakis. 1578 Each of the other valuation reports also recites the purpose and method as quoted above. Each report observes that Mr Vasilakis has not sighted the vehicle and each report contains Note 4 by which Mr Vasilakis says that the vehicle remains unsighted both physically or by photographic evidence. 1579 I will now set out the valuations for each of the other nine vehicles given in answer to each of the two questions asked of Mr Vasilakis. 1580 As to Vehicle 2: VEHICLE 2 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [371,605 kilometres] is considered HIGH for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $5,200.00 - $6,200.00 being in good condition $4,200.00 - $5,199.00 being in average condition $3,200.00 - $4,199.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: N/A VALUE RANGE: $4,199.00 to $5,199.00 being in average condition expected for its age; with the above mentioned defects; and the actual odometer reading. The value range given is based upon a fair market value for similar vehicle/s, with the impact of the stated defects reflected in the valuation. 1581 As to Vehicle 3: VEHICLE 3 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [332,037 kilometres] is considered HIGH for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $8,367.00 - $9,600.00 being in good condition $7,134.00 - $8,366.00 being in average condition $5,900.00 - $7,133.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The car was defective in that from the time that the purchaser acquired it, it would regularly breakdown and require towing; The car did not come with a jack; The spare tyre had a nail in it. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1582 As to Vehicle 4: VEHICLE 4 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [317,782 kilometres] is considered HIGH for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $7,167.00 - $8,300.00 being in good condition $6,034.00 - $7,166.00 being in average condition $4,900.00 - $6,033.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The car was defective in that from the time that the purchaser collected it; it made a strange noise when the ignition was turned on; The car was defective in that from the time the purchaser acquired it, it would regularly not start; and Sometime prior to June 2011, the Ford Spectron broke down again and remained in the purchaser's driveway for a period of approximately two months. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1583 As to Vehicle 5: VEHICLE 5 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [139,936 kilometres] is considered LOW for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $6,100.00 - $7,200.00 being in good condition $5,000.00 - $6,099.00 being in average condition $3,900.00 - $4,999.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The wheels were cracked and were required to be replaced at a cost of $180 each; The front passenger door did not open, and once repaired, the window winder was broken; The car had paint damage for which the purchaser was quoted $800 to repair; and the spare tyre of the car was flat. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1584 As to Vehicle 6: VEHICLE 6 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [273,148 kilometres] is considered AVERAGE for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $3,167.00 - $3,900.00 being in good condition $2,434.00 - $3,166.00 being in average condition $1,700.00 - $2,433.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The horn did not work; and the indicators did not work. VALUE RANGE: $2,434.00 to $3,166.00 being in average condition expected for its age; with the above mentioned defects; and the actual odometer reading. The value range given is based upon a fair market value for similar vehicle/s, with the impact of the stated defects reflected in the valuation. 1585 As to Vehicle 7: VEHICLE 7 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [289,212 kilometres] is considered HIGH for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $7,000.00 - $8,100.00 being in good condition $5,900.00 - $6,999.00 being in average condition $4,800.00 - $5,899.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The car was defective in that from the time that the purchaser acquired it, it would regularly break down and require towing; The fan belt snapped after one week of purchase; The car regularly overheated; and Sometime in late 2011, the Holden Apollo broke down again and was abandoned at a mechanic's garage in Edmonton. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1586 As to Vehicle 8: VEHICLE 8 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [340,078 kilometres] is considered HIGH for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $9,100.00 - $10,500.00 being in good condition $7,700.00 - $9,099.00 being in average condition $6,300.00 - $7,699.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: The car when delivered was missing a number of wheel nuts from one wheel such that it shook violently when drive; The car did not come with a jack handle; The radiator leaked constantly; The head gasket was defective and within two weeks from delivery of the car the head gasket blew requiring replacement; and The engine constantly over heated due to a faulty radiator fan. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1587 As to Vehicle 9: VEHICLE 9 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [274,406 kilometres] is considered AVERAGE for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $9,100.00 - $10,500.00 being in good condition $7,700.00 - $9,099.00 being in average condition $6,300.00 - $7,699.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: Within several months of the purchasing this vehicle the fan belt broke; The car had rust inside; The radiator of the car leaked and continues to leak; Within 10 months of acquiring the car, it required two new tyres; and Three of the four power windows did not and do not work. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1588 As to Vehicle 10: VEHICLE 10 IN APPENDIX A SUMMARY Vehicle Comments: The odometer reading for this vehicle [197,298 kilometres] is considered AVERAGE for its age. With regards to Question 1: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland are: VALUE RANGES $5,034.00 - $5,900.00 being in good condition $4,167.00 - $5,033.00 being in average condition $3,300.00 - $4,166.00 being in poor, but saleable condition Given the value ranges stated above for each condition described, and based on the information provided, it is statistically likely for this vehicle/s to fall into one of the categorised condition descriptions, segmented by different value ranges. All valuation ranges provided above do not take into consideration the vehicle defects listed in the column headed "Comments" in Appendix A. The valuation range/s stated above take into consideration the date of manufacture, the vehicle parts the documents indicated have been fitted; and any information discernible from the vehicle identification number. With regards to Question 2: In summary, the valuation range/s for this vehicle at the time of sale, in Cairns Queensland with the following defects; Vehicle Defects: After the purchaser took possession of the car on 29 June 2012, the car broke down by 2 July 2012; After the car broke down it was collected and then kept for 2 days for repairs; After the purchaser took possession of the car again following the repairs, it broke down at the traffic lights immediately after departing from the repairer and had to be towed back to the repairer where it remained for repairs for approximately 2 weeks; and The ignition required replacing. VALUE RANGE: I verbally requested further information from ASIC to confirm details of the defects, however no further information is available. Accordingly, I am unable to quantify a response to Question 2. 1589 As to each of these vehicles, the sale price was as follows: Appendix A Vehicle Number (as above) The sale price including GST but excluding stamp duty, registration and extended warranty Vehicle 1 $9,610.50 Vehicle 2 $6,712.00 Vehicle 3 $8,645.50 Vehicle 4 $8,689.00 Vehicle 5 $8,689.00 Vehicle 6 $3,833.00 Vehicle 7 $7,680.50 Vehicle 8 $10,579.00 Vehicle 9 $9,610.50 Vehicle 10 $5,768.00 1590 Notwithstanding that Mr Reid was not called, a further affidavit was put on by Mr Vasilakis sworn 29 October 2014. In a sense, the second affidavit falls away because it is responsive to an affidavit which was not read. Nevertheless, Mr Vasilakis in the further affidavit agrees with a proposition that a more accurate valuation can be provided in circumstances where a valuer is able to inspect the vehicle in question. That follows because a thorough inspection of the vehicle will allow the valuer, in the opinion of Mr Vasilakis, to assess the "overall condition of a vehicle". Mr Vasilakis says that in his various valuation reports he has attempted to overcome his inability to inspect each vehicle by making "no assumption" about the condition of each vehicle and by providing a valuation range which assumes that the vehicle is in either a poor, average or good condition. Moreover, Mr Vasilakis accepts that a difference in value arises between a "base model" of a vehicle and a "specific model" and he agrees that the difference "may be substantial". Mr Vasilakis observes, however, that five of the 10 vehicles for which he prepared a valuation report "had their specific model identified": para 6 of the supplementary affidavit. Mr Vasilakis says that in preparing each valuation report, he has assumed that each vehicle is "roadworthy". One final matter arising out of the supplementary affidavit should be mentioned. Mr Vasilakis says that the Guide reflects the "market price" for vehicles. He says that motor vehicle dealers derive their margin by purchasing vehicles below the market value and selling them at (or above) market value. 1591 Apart from the matters set out in his affidavit, Mr Vasilakis also gave oral evidence in chief and was extensively cross-examined by Dr Spence. 1592 Mr Vasilakis says that the vehicle values offered in the Valuation Reports and in oral evidence are a "retail value" rather than a "wholesale value": T p 765 ln 45. Those values are said to be relevant "at pretty much anywhere on the eastern seaboard in any major regional centre… with a population of over 100,000": T, p 766, lns 5-6 1593 In his oral evidence in chief, Mr Vasilakis was taken by counsel for ASIC to the Valuation Report in respect of each of the 10 motor vehicles. 1594 As to Vehicle 1 (the 1997 Holden Commodore Executive VT), Mr Vasilakis says that the "odometer reading for [Vehicle 1] is considered high." Mr Vasilakis was then asked how he took that into consideration in his approach: T, p 764, lns 26-27 . Mr Vasilakis described the process in these terms at T, p 764 lns 42-45: This vehicle showing a high odometer reading would fall into somewhere between the lowest – the poor but sellable condition – up to the average condition range. So somewhere between [$]5800 and [$]8266. Keeping in mind we haven't sighted the vehicle. Had we have sighted it and appraised it that valuation would have been more accurate within a 5 per cent – 5 to 7 per cent range. [emphasis added] 1595 Mr Vasilakis was then asked to state "on the balance of probabilities" what the likely value range for the vehicle would be without taking into account the vehicle defects. He said this at T, p 765, lns 6-9: Well, the balance of probability then, in my experience, would be – looking at the basics of [the] high odometer reading – would be somewhere between $7033 and $8266, considering a vehicle that has no issues and is in roadworthy condition. [emphasis added] 1596 As to the defects identified by ASIC, Mr Vasilakis said this at T, p 765, lns 11-21: The defects identified [were] that the air conditioning was not working and the windows would not go all the way up and the car did not have a spare tyre. It's an unknown whether the compressor had seized on the air conditioning or whether it just simply needed re-gassing. So it's an unknown quantity – whether it's a $120 re-gas or a $15,000 replacement on the compressor. With the windows it's unknown whether there was an obstruction stopping the window from going all the way up or whether there was an actual fault in the electric window motors. So in considering that, in my experience, the car would fall in the lower range in – of the average – average condition. So somewhere around the $7000 it would be worth, with that sort of an odometer reading. [emphasis added] 1597 As to Vehicle 2 (the 1998 Toyota Camry V20R sedan), Mr Vasilakis accepted that the "odometer reading for [Vehicle 2] is considered high". His evidence is that a six cylinder car was "about beyond its useful life" once the odometer reading reached 350,000km: T, p 765 lns 26-30. 1598 Mr Vasilakis was asked for his view of the value range "on the balance of probabilities". He said this at T, p 765, lns 36-42: Although Toyotas are probably the more reliable make out there – this vehicle is probably – it's well above its useful life. In considering the price – I claimed that it was sold for $6990 – I would assume that's with GST. Our prices are with GST, and I would say it would fall into the range of somewhere between the lower end – between poor and average, but with such high kilometres on a six cylinder engine it would be closer to around $4000, not taking into account any defects. [emphasis added] 1599 It was then put to Mr Vasilakis that Vehicle 2 did not have any identified defects. He said this at T, p 766, lns 20-22: In not having – on that one not having any defects the retail price was somewhere between $4199 and $5199. [emphasis added] 1600 As to Vehicle 3 (the 1997 Ford Fairmont Ghia EL sedan), Mr Vasilakis says this at T, p 766, lns 28-33: It's reaching the end of its usable life. It's at the point where it will start costing a consumer lots of money to – for its upkeep. It's odometer reading is considered quite high, so it would be somewhere between the poor and average condition range, so prices would be somewhere between [$]5900 and $8366. [emphasis added] 1601 As to the defects identified by ASIC, Mr Vasilakis said this at T, p 767 lns 36-44: So [the extent and cause of the defects are] an unknown. We did request further information, but there was no further information available. So in my experience, considering the odometer reading, I would expect a car at this odometer reading at this – and this age to have some breakdown issues, and they would be predominantly around the drive train, be it engine, transmission, differential, suspension, brakes. And in saying that, I would say that if I was asked, in my experience, the retail value for this vehicle would be on the very low side, around the [$]5900, and, in my opinion, not suitable for retail sale. Well, it's got one – one year, maybe two years left of its life, so it's not really suitable. It's at the end of its life. It should be considered for scrap. [emphasis added] 1602 As to Vehicle 4 (the 1990 Ford Spectron wagon), Mr Vasilakis says this at T, p 768, lns 5-12: Well, we're talking about – at the time, it was a 20 year old vehicle with over 300,000 kilometres. It was a little four-cylinder. It was a commercial vehicle. Although it's a people-mover, it's considered as a – as a commercial vehicle, so generally commercial vehicles are used more as a workhorse or have had more usage from them. It was sold for [$]8990 retail. The highest retail in good condition should have been around [$]8300. Considering the odometer reading and definitely the age of the vehicle at the time, it would be somewhere in the [$]4900 to $6033 to be in sellable condition. [emphasis added] 1603 Mr Vasilakis was then asked to assume that the defects identified by ASIC existed and to say "where on the balance of probabilities, the value might lay?" He said this at T, p 768, lns 37-41: I would say the price range would be low. With those issues, it's not sellable unless the issues were masked with products available in the industry to mask those types of things. But in – taking it on face value, in my experience, a vehicle having these issues is not really sellable with a roadworthy for retail value. But if it had to be, it would be at the very low, [$]4900 – around the [$]5000 mark. [emphasis added] 1604 As to Vehicle 5 (the 1997 Hyundai Elantra sedan), Mr Vasilakis says that the odometer reading for this is "extremely low." He also says that he infers the vehicle was a "base-model vehicle" because the vehicle had a "window winder that was broken": T, p 769, lns 6-9. 1605 Mr Vasilakis was then asked for his view of the vehicle's likely value within the ranges identified in his report. He said this at T, p 769, lns 14-20: On face value you would – you would – having a manual – being a manual vehicle with wind-up windows and a standard colour, but maroon was available back then for – for the Elantra as a standard colour, it would be a base-entry model vehicle. On face value I would – if I was looking at this in a – in an ad in a paper I would think that it was a good vehicle and that it would be – be worth considering to go out and take a look for purchasing. At [$]8990 retail it should be more around the [$]7200 mark … But with the low odometer reader – reading it's certainly an attractive vehicle. So on – in giving a value without any defects it would be at the higher end. Somewhere between [$]6100 and [$]7200 is what they were selling for at the time. [emphasis added] 1606 As to the defects in the vehicle identified by ASIC, Mr Vasilakis said this at T, p 770, lns 25-42: … if the vehicles were sold with a roadworthy well, then, there's certainly another issue here because the wheels shouldn't have been cracked. They would have - should have been checked and – checked by the roadworthy tester to make sure they were safe before he passed the car for roadworthy. If they were cracked at the – you know, and taking into account the valuation and taking into account that the door didn't open, the window winder was – it was broken and probably from the repair to the door, and the paint being damaged, it - the valuation for – for this vehicle would be at the lower end; somewhere around the [$]3900 to $4999 range. … The car has got a fairly low odometer reading. But for the paint to be damaged you would – once again, in my experience if it was damaged by – if it was damaged purposely well, then, that probably would have been raised at the point of sale. But if the paint had peeled away the – the lacquer was – it was very common for these vehicles that the lacquer would peel away on top, and you see those vehicles getting around where it has got a base coat, and it's all peeling on top which means the car has been out in the sun quite a lot. I would then in my experience begin to question the odometer reading and to check that it hasn't been either flicked back or the dash – the complete dash hasn't been changed. [emphasis added] 1607 Mr Vasilakis confirmed he had made an assumption that Vehicle 5 was a base model because it had a broken window winder, manual transmission and standard paint: T, p 778, lns 1-2. 1608 As to Vehicle 6 (the 1993 Holden Barina hatch), Mr Vasilakis was asked to say where within the values identified in his report "it's more likely to be". He said this at T, p 771, lns 6-10: Well, the values should be somewhere in the average to good condition. And around the price it was sold for is – no. It – it would be somewhere around the $3000 mark it would be worth only because the odometer reading is – is average, but there's probably another two or three years life left in that vehicle before it starts costing money. [emphasis added] 1609 The defects in the vehicle identified by ASIC were that the horn did not work and that the indicators did not work. Mr Vasilakis said that "the value range we've put with [these] issues is somewhere between $2436 and $3166" but that the defects would mean that the vehicle "was not sellable with a roadworthy" because those were "roadworthy items": T, p 771, lns 19-25. 1610 Mr Vasilakis made an assumption that Vehicle 6 was a base model because "the majority of these were sold as base models" and because it had a manual transmission: T, p 777, lns 45-46. 1611 As to Vehicle 7 (the 1994 Holden Apollo sedan), Mr Vasilakis was asked to take into account the odometer reading and say what value within the ranges identified in his report "is more likely than not". He said this at T, p 771, lns 34-36: It's more likely in – in my opinion that the value range for this vehicle would be somewhere around the [$]4800 to $5899 range but still in sellable condition with a roadworthy. [emphasis added] 1612 As recited at [1585] of these reasons, Vehicle 7 was said to be defective in that it "regularly broke down and required towing", the "fan belt snapped" and it "regularly overheated". As to those defects Mr Vasilakis said this at T, p 772, lns 12-18: So without knowing [the cause and extent of the defects], but knowing that it has got some serious issues with breakdowns, I would say the value would be in the – the very low end. Somewhere around the [$]4,800. That's providing it's economically viable to repair. If you're needing to repair an engine with overheating and head – head gasket problems you're talking [$2000] to $3,000. It might not be financially viable to repair it. You know, a car that in effect is only worth [$]4,000 – [$]5,000 at the most. [emphasis added] 1613 Mr Vasilakis made an assumption that Vehicle 7 was a base model on the basis that it was "manual [transmission] in white" and that as a "rule of thumb, somebody wouldn't have optioned an upper entry-level vehicle with a manual; they would have ordered it with an automatic": T, p 777, lns 39-40. 1614 As to Vehicle 8 (the 2001 VX Holden Commodore wagon), Mr Vasilakis says this at T, p 773, lns 17-28: At [an odometer reading of] 340,000 the car has probably got a year left before it starts costing some real money in maintenance. The unknown is – is what life the car has had up until 340,000. So it may have had a hard life to begin with. The price it was sold for is full retail price. It should have been – full retail in good condition would have been around [$]10,500 according to the Glass's Guide at the time. In considering the odometer reading on this vehicle, and it being a wagon which is quite – at the time it was quite useful and desirable by families. That trend has now changed to SUV's. But I would be thinking the price range, without considering the defects, somewhere between [$]7,700 and $9,000. [emphasis added] 1615 Mr Vasilakis was then asked to assume that the defects identified by ASIC were present and say "generally" within what range the value would "more likely" have fallen. He said this at T, p 774, lns 19-21: So in taking into account what that car would need for repair it would be – and its odometer reading, at best it would be around the [$]6000 mark but unsellable. And certainly, with the wheel nuts like that it wouldn't pass for roadworthy. [emphasis added] 1616 Mr Vasilakis made an assumption that Vehicle 8 was a base model on the basis that it was "automatic [transmission], six-cylinder [and] silver in colour" which are said to be "all standard features on … a base-model vehicle": T, p 777, lns 33-34. 1617 As to Vehicle 9 (the 1995 Mitsubishi Pajero), Mr Vasilakis says this at T, p 774, lns 31-35: Well, retail price on this vehicle in average condition should have been somewhere between [$]7700 and $9099. It was sold for [$]10,990. The odometer reading was average and probably had about five or six years of, you know, okay life left in it. So the assumption on that price would be that it must have been a well maintained vehicle at that odometer reading. [emphasis added] 1618 Mr Vasilakis was then asked how the defects identified by ASIC, particularly the presence of rust, would affect his views. This exchange occurred at T, p 775, lns 5-30: A: Okay. Well, the rust is an unknown quantity. We don't know whether it was a five-cent piece bit of rust in between the tailgate and the body, or whether it was rust in the floors or the chassis. Either way, with rust a vehicle doesn't rust in 10 months of it being roadworthied, and rust is a – is a roadworthy issue. So any vehicle that has rust shouldn't have received a roadworthy report. And rust definitely won't come about within 10 months unless it was masked … So we don't know where the rust is. The assumption here is that if it was in the floors or the chassis it should never have been roadworthy which means the car is worthless … Q: Okay. So just focusing on the things where you think it would make a difference. If you can just [explain] those? A: Well, the rust definitely. The rust would be a red flag, and that would make the car unsellable. But if it was sellable it would be in the very low range around the [$]6300 mark. [emphasis added] 1619 As to Vehicle 10 (the 1996 Hyundai Excel hatch), Mr Vasilakis was asked "just based on the odometer reading" which range of values the car lay in "on the balance of probabilities". He said this at T, p 775, lns 40-43: I would say the upper range. It would be – well, between average and the upper range, but in considering [an odometer reading of] 197,000, there's quite – quite a bit of life left in it. So somewhere between the $5034 and $5900 would be a fair assumption in my experience. [emphasis added] 1620 As recited at [1588] of these reasons, Vehicle 10 was said to be defective in that it repeatedly broke down and required repairs and the ignition required replacing. As to those defects Mr Vasilakis said this at T, p 776, lns 1-8: So without knowing why it broke down the only assumption I've made with this in reviewing it last night was that these vehicles were popular as hire cars at the time and especially being white and an automatic. So perhaps this vehicle was an ex-hire car, and it had a hard life and, thus, the breakdowns. But in knowing that little piece of history on it that it had broken down, I would say the value on the vehicle would be somewhere between [$]3300 and $4166. [emphasis added] 1621 I will now address the cross-examination of Mr Vasilakis on these various matters. 1622 As to Vehicle 1, Mr Vasilakis accepted that his valuation was qualified in that if he "had more information about the exact cause of defects or the extent of the defects" his valuation may have been affected: T, p 823, lns 1-4. 1623 As to Vehicle 2, Mr Vasilakis confirmed that he "valued it without any defects" at "between $4199 and $5199" as a vehicle "being in an average condition for its age" and based on its documented odometer reading. He accepted that he did not know at the time of the sale whether in fact it had no defects but "assumed it didn't have defects because it was sold with a roadworthy certificate": T, p 823, lns 27-30. 1624 As to Vehicle 3, Mr Vasilakis says that "the defects weren't specific" and that therefore he "couldn't give a precise value on this vehicle". This exchange then occurred at T, p 824 lns 27–37: Q: … so, really, to a certain extent, the effect of these defects in relation to the valuation you made of that car are uncertain? A: Well, based upon the questions I was asked this morning I'm not uncertain. Based upon the questions and the answers I gave – I gave specific answers as to the range that would – it would fall into. As far as intermittent problems, well, it's not an exact science, because every problem has a different solution to it. And it's on the case of what's probable. And it goes back to based on my experience in the automotive industry. Q: Yes. But you would agree, wouldn't you, the cause of the defects that you took into account there would have a great effect on the cost factor of fixing the defects and, therefore, the value of the vehicle; is that not the case? A: Yes. Certainly. [emphasis added] 1625 As to Vehicle 4, Mr Vasilakis accepted that he had been unable to quantify a response to question 2 in his Valuation Report but that in answering the questions put to him in oral evidence his view was that "based on the probability" the value range was "low to average range" and that with the defects identified by ASIC the value was "at the lower end of the spectrum": T, p 825, lns 4-6; lns 28-30. He confirmed that the more precise valuations offered in oral evidence were relevant to question 2 in the ASIC letter of instruction. As to whether Vehicle 4 was saleable as roadworthy Mr Vasilakis said this at T, p 826, lns 25-32: I'm not sure if it was the Spectron we spoke about that was unroadworthy. I – I do recall we spoke about a – a few vehicles with worn out tyres and some other specific issues. I don't recall saying that this vehicle was unroadworthy, other than what I mentioned a few moments ago that it did have – and it may have been in the statutory warranty period – that I would have thought that there was no warranty period on a vehicle with more than 150,000 kilometres on the clock, but it did go back a month later for some electrical issues to BK Auto Electrical and it had some braking issues on 12 November. 1626 As to Vehicle 5, it was suggested to Mr Vasilakis that his assumption that the vehicle was a base model "because it had a broken window winder" was "guesswork". Mr Vasilakis says that his valuation is "educated guesswork … I didn't say definitive, but [it's] more probable, it would be a base model": T, p 827, lns 3-8. Mr Vasilakis says that he also relied on the colour of the vehicle and the fact that it had manual transmission to support his assumption. He accepted that the vehicle could have been repainted after manufacture and that he did not know the standard of the paintwork: T, p 827, lns 14-20. He accepted that he never saw owner's history books or service histories and that he did not know what modifications may have been made to each vehicle by previous owners that may have been relevant to his assumptions: T, p 827, lns 33-36. 1627 As to Vehicle 6, it was put to Mr Vasilakis that his view that the vehicle "only had another two years [of] life in it" was an "educated guess." Mr Vasilakis accepted that it was an "educated guess based on common sense" and that "most others in the motor industry" would advise a potential buyer not to consider the vehicle: T, p 827, lns 41-46. Mr Vasilakis accepted that the "prognosis of what the expected life" of a car is depends on the "nature of each specific vehicle". He says that the fact that he did not see the vehicle does not allow him to give an accurate appraisal as to the true condition of each vehicle: T, p 828, lns 18-24 1628 As to Vehicle 7, Mr Vasilakis accepted that he had stated in oral evidence that the overheating of the vehicle identified by ASIC could be because the whole radiator needed replacing. He accepted that "it's possible" that a vehicle with a high odometer reading that had been well maintained with an engine in good condition that was overheating could be referable to "something far less expensive to fix than replacing the engine" although "the battering on the suspension is the same": T, p 828, lns 43-45; p 829, lns 1-2. Mr Vasilakis accepted that in general the defects identified by ASIC could have arisen from "a small problem that created greater damage to the car after the date of sale": T, p 829, lns 16-20. 1629 As to Vehicle 8, Mr Vasilakis accepted that the defective "wheel nuts" could have been the fault of "someone who had just done repair work" although if the vehicle had been inspected for a roadworthy certificate "they were part of the check": T, p 831, lns 5-10. He accepted that this scenario could explain how the defect occurred after the sale without the knowledge of the seller and he says that that scenario "of course, it's probable": T, p 831, lns 33-39. He also accepted that the overheating of the vehicle could have been "exacerbated by the failure of the purchaser to adequately look after the car" although he said that that would be "unlikely" because if the car is a new purchase "you want to look after your new things": T, p 831, lns 12-20. 1630 As to Vehicle 9, Mr Vasilakis accepted that he had assumed that the vehicle must have been well maintained. On that basis he says "the price range would be somewhere between [$]7700 and [$10,500]". Mr Vasilakis did not accept that it is "fairly typical" to find "some rust in an old car". He said that "if it was based near a seaside town, yes, it could rust. But once again, rust doesn't start in 10 months unless it was hidden, and it should never pass roadworthy": T, p 832, lns 25-30. He accepted that this factor in his valuations depended on the extent of the rust but says that "it doesn't matter where it is". This exchange then occurred at T, p 833, lns 1-5: Q: Now the whole point is, isn't it, that the value of the car is going to vary enormously with the kind of rust problem it has? A: Well, enormously – if it has got rust, it shouldn't be roadworthy, so it's not fit for sale. Q: Serious rust? A: Any rust. [emphasis added] 1631 As to Vehicle 10, it was put to Mr Vasilakis that his oral evidence that the vehicle had been a "hire care" was pure speculation. Mr Vasilakis says that "it is speculation, but it's based on my experience and what could be probable": T, p 834, lns 1-6. 1632 Mr Vasilakis was also cross-examined as to his general methodology. 1633 As to the difference in the specificity of his oral and affidavit evidence, Mr Vasilakis accepted that in oral evidence he had given more precise values in respect of the vehicles. He accepted that his reports state that the value of a vehicle is statistically likely to fall within the lowest value of a poor but saleable vehicle to the highest value of a good condition vehicle. Mr Vasilakis was asked "what changed since the date you wrote the report?" He said this at T, p 785, lns 6-9: I was asked a specific question before to answer that in my experience and from my knowledge as to what would be probable, and that's why I've answered it more specifically than in the report. [emphasis added] 1634 Mr Vasilakis was taken to Ex SXV-1 of his affidavit which contains a large number of invoices and receipts in respect of the 10 vehicles the subject of valuation. He accepted that the invoices related to either repairs done to vehicles by Supercheap or spare parts bought by Supercheap: T, p 782, lns 27-40. Mr Vasilakis was then taken to the third column of Appendix A of the letter of instruction from ASIC, as recited in [1565] of these reasons, which sets out vehicle defects. This exchange then occurred at T, p 783, lns 15-46: Q: Do you know where the contents of the column in relation to comments as to defects came from? A: From the receipts and invoices. Q: From the receipts and invoices? A: Well that's my assumption. That's – yes … Q: You assumed in relation to that that these were defects that were seen in the vehicles after the date of sale. Is that right? ... A: That's the claim. Yes. Well that's what was stated in the comments. Yes. [emphasis added] 1635 It was put to Mr Vasilakis that the reason for the difference in specificity between his Valuation Reports and his oral evidence was that he failed to take into account "the repairs made to the vehicle in accordance" with the invoices set out in exhibit SXV-1 and that he had assumed that those repairs were made after the sale of the vehicles and not before. Mr Vasilakis says "to a point, yes": T, p 785, lns 15-24. 1636 Dr Spence put to Mr Vasilakis that "if you made a repair, it could be to a significant part of the car which would greatly improve its value". Mr Vasilakis says "there's not a specific black and white answer that I can give you for that question". He says that "it's irrelevant what repairs were done prior to sale" and that "repairs do not add value to a vehicle": T, p 786, lns 10-23. Mr Vasilakis did not accept that fair market value "from a seller's point of view" could be affected by the "overheads that they have in running their sales yard": T, p 833, lns 34-36. 1637 At T, p 787, lns 8-12, this further exchange occurred: Q: If we assume what you said before is true, that it's irrelevant to value that a number of repairs have been made to a second-hand vehicle before a sale, I suggest that your values are still highly inaccurate because you have assumed those repairs to each vehicle were made after the date of same? A: I disagree. I haven't assumed those repairs were made after the sale… [emphasis added] 1638 In the course of re-examination, this further exchange occurred at T, p 836, ln 1-4: Q: … it was put to you that repairs of a vehicle – if you have two vehicles of similar quality and one has had repairs done to it and the other hasn't and it doesn't change the value of the car? A: No. No, sir. 1639 Mr Vasilakis accepted that he could not comment on the previous owner history in relation to all the vehicles he expressed valuation opinions on: T, p 781, lns 10-13. PART 33: ASSESSMENT OF THE EVIDENCE AND CONCLUSIONS ON THE QUESTIONS IN ISSUE 1640 In the course of these reasons, I have examined very extensively all of the evidence going to the contended contraventions. These proceedings turn almost entirely on an assessment of the various factual matters in issue. The principles are not really in contest although the statutory framework needs to be specifically addressed. ASIC contends that CBPL has contravened ss 113, 114, 115, 116, 117, 118, 121 and 123 of the NCCP Act. ASIC seeks declarations in relation to those contraventions no doubt on the footing that those declarations are intended to be explanatory of the basis upon which a civil pecuniary penalty is sought pursuant to s 167 of the NCCP Act. The question of pecuniary penalties is to be addressed as a separate question. 1641 As to Channic, ASIC contends that Channic has contravened ss 128, 130, 131 and 133 of the NCCP Act. ASIC also seeks a declaration that the credit contracts entered into with the consumers described at [73] of these reasons were unjust within the meaning of s 76 of the National Credit Code. Apart from these matters, ASIC seeks a declaration that Channic, by engaging in the conduct recited in the statement of claim engaged in unconscionable conduct in contravention of s 12CB of the ASIC Act. As to the NCCP Act contraventions, ASIC seeks the imposition of civil pecuniary penalties pursuant to s 167 of that Act in respect of those contraventions, as a separate matter. ASIC also seeks orders pursuant to s 76 of the National Credit Code that each of the credit contracts made between Channic and the relevant borrowers be re-opened and the borrowers be further relieved of any liability to Channic in relation to those contracts. 1642 As against Mr Hulbert, ASIC seeks a declaration that Mr Hulbert has contravened ss 113, 114, 115, 116, 117, 118, 121, 123, 128, 130, 131 and 133 of the NCCP Act, as a person "knowingly concerned in" those contraventions: s 169 and s 5, NCCP Act. 1643 At Part 2 of these reasons, I set out the relief claimed by ASIC in the originating application and at Part 3, I identify various matters drawn from the pleadings. At Part 4, I set out the questions to be addressed in relation to the NCCP Act matters and at Part 5, I set out the admissions made by and on behalf of the respondents. Other matters are not admitted. 1644 As mentioned, I have examined closely all of the evidence given by the consumers who dealt with CBPL (apart from Ms Raymond who did not deal with CBPL). All of the consumers entered into transactions with Channic. I have also examined closely the evidence from other consumers called to give evidence on behalf of, principally, Channic. General comments 1645 As to the evidence of the consumers relied upon by ASIC in support of the contentions of contravening conduct, I have set out the various observations in the course of reviewing their evidence. I accept the evidence of each of those consumers. Some of the matters about which those consumers speak are the subject of admissions set out at Part 5 of these reasons, in part at least based upon positions taken on the facts as described in Part 3. Those admissions, however, were no doubt informed by other factual matters as well. 1646 Each of the consumers relied upon by ASIC have spoken extensively in their evidence to the particularity of their circumstances and the chronology of their engagement with Mr Humphreys and Mr Hulbert and through them, CBPL and Channic. In other words, they address the very particularity of the transactions in which they were involved and the contextual circumstances confronting them in seeking to purchase a motor vehicle, engage with CBPL and finance the purchase of that motor vehicle through Channic, as each of them were referred to Channic by CBPL. They also speak to their own cultural, educational, domestic, financial and employment circumstances forming the calculus of factors relevant to their engagement with Mr Humphreys, Mr Hulbert, CBPL and Channic (recognising, of course, that Ms Raymond did not deal with CBPL). 1647 The contentions, on the facts, asserted by each of the consumers (apart from the admissions) are contested by CBPL, Channic and Mr Hulbert. 1648 In seeking to meet the particularity of the factual contentions of each consumer concerning each transaction, Mr Humphreys has given evidence about his role and engagement with persons going to Supercheap to purchase a car and his role in CBPL. He has virtually no recollection of his dealings with the consumers relied upon by ASIC. Thus, he cannot speak to the particularity of the transactions, what was said, the steps taken in each case, the degree of inquiry in each case, the nature of any verification of information and other such matters. Rather, he talks about his general practice and his general approach and the things he typically did in discharging his role at Supercheap and CBPL. 1649 In seeking to further meet the particularity of the factual contentions of each consumer concerning each transaction both with CBPL but more particularly with Channic, Mr Hulbert has also given evidence about his role at Channic (and CBPL), his role in engaging with each consumer in entering into a credit contract to finance the purchase of a motor vehicle sold by Supercheap to the consumer, the nature of the enquiries he conducted of CBPL and consumers, the verification steps, the explanation of the loan contract to consumers and many such matters. Mr Hulbert is also unable to recall, in very large measure, the particularity of his engagement with each of the consumers upon which ASIC relies. In other words, he is unable to speak to his actual recollections of the detail of what was said to each particular consumer, the chronology of the transaction, the actual explanation of each particular loan contract, the detail of the enquiries, the detail of the verification and the detail of the assessments. Rather, Mr Hulbert seeks to identify his general method, practice and procedures in dealing with consumers who required finance in order to purchase a motor vehicle sold by Supercheap to those consumers. He seeks to say that he applied that general method and adopted those practices and procedures in his dealings with each of the consumers relied upon by ASIC. In principle, he sees no point of relevant departure from that method or those practices and procedures and his particular dealings with each of the consumers relied upon by ASIC. Thus, by inference, he says he behaved in the same way towards them as he did generally with others. 1650 As I observed in the course of addressing the evidence of Mr Hulbert, one of the difficulties with his evidence is that rather than answer the content of the evidence of each of the consumers relied upon by ASIC (because he is unable to recall the detail of it), he seeks to say that he must have dealt with each of those consumers in the way in which he generally dealt with consumers and if that be so, the method, practice and procedures he adopted are entirely inconsistent with the version of the facts put forward by the consumers relied upon by ASIC. 1651 Because Mr Hulbert is not able to directly engage on the particularity of the transactions, I am satisfied that the best evidence on each of the transactions with the relevant consumers is the evidence of each of the consumers subject to one qualification on one aspect of their evidence. That qualification concerns the extent to which Mr Hulbert explained to each of the relevant consumers the elements of the loan contract. I am satisfied that as Mr Hulbert dealt with each of the consumers relied upon by ASIC, he embarked upon a practice of reciting what he described as his "spiel". I am not satisfied that the explanation of the loan contract or the process of securing its execution was as comprehensive as Mr Hulbert seems to believe it was. However, I accept that Mr Hulbert had in mind a particular spiel or set of explanations which he would typically run through with consumers and it seems to me, on the balance of probabilities, that he ran through that spiel with each of the consumers relied upon by the applicant. I am satisfied that the spiel would have identified elements of the Financial Table and the matters on pp 1, 2 and 3 of the contract. I am satisfied that Mr Hulbert took each consumer to the various execution places and the boxes related to whether legal advice would be obtained or not. I am satisfied that there was probably some passing reference to the general terms and conditions and I am satisfied that Mr Hulbert took each consumer to the matter of the direct debit arrangements. However, I am satisfied that the elements of that explanation, truly were part of a "spiel", a well-rehearsed form of "patter". I am also satisfied having had the benefit of hearing and seeing each of the consumers relied upon by ASIC that it must have been transparently plain to Mr Hulbert that these consumers, to the extent that they understood any element of the spiel, would have done so in a most transient way with no real comprehension or understanding of the derivation of the amount of credit, the interest component in dollar terms, in some cases the rate, the total body of repayments and other such matters. I am satisfied that these things were mentioned but I have, no doubt, that there was no relevant understanding of these matters on the part of the consumers relied upon by ASIC. Some of the witnesses describe the spiel as "blah blah blah" and although, plainly enough, things were being said by Mr Hulbert the content of the items and the inter-relationship between them was not being grasped by these individuals. These consumers were, by and large, in difficult personal and financial circumstances and Supercheap represented their only opportunity, realistically, to obtain a motor vehicle and, in order to do so, they needed finance from Channic. These particular circumstances must have been transparently obvious to Mr Hulbert as it must have been to Mr Humphreys beforehand. These matters go to the issues in relation to whether the conduct of Channic was unconscionable conduct. This is a quite separate question from whether or not CBPL, Channic and Mr Hulbert discharged obligations cast upon them under the NCCP Act. 1652 There are other difficulties with the evidence of Mr Hulbert apart from the question of seeking to raise an inference about the particularity based upon the general, and those difficulties are concerned with a number of anomalies in the evidence of Mr Hulbert and the documents. I am pressed to make adverse credit findings against Mr Hulbert concerning much of his evidence. It is sufficient to observe that it seems to me that Mr Hulbert was confused about many aspects of matters the subject of his evidence and this confusion emerged more particularly in the course of his oral evidence. I have set out the detail of Mr Hulbert's evidence very extensively. I will need to deal with some aspects of it here. 1653 A further element of seeking to answer the factual contentions advanced against CBPL, Channic and Mr Hulbert by the relevant consumers, involved evidence being called and put on, on behalf of those respondents, from consumers who, on the face of their affidavits, asserted, quite emphatically, facts about their respective engagement with Channic and Mr Hulbert and also CBPL which were said to be consistent with the factual assertions of Mr Hulbert about his general method, practice and procedures when dealing with consumers seeking to obtain finance in relation to the purchase of a motor vehicle acquired from Supercheap. 1654 The point of this evidence is to provide a factual foundation upon which it can be said, as a matter of inference that because Mr Hulbert engaged with consumers in the way in which these witnesses say he did, he would, on the balance of probabilities, have dealt with the consumer witnesses relied upon by ASIC in the same way. The short point is a similar fact or propensity point. Again, I have examined very extensively the affidavit and oral evidence of those consumers. Much of their evidence proved not to be as emphatically clear as suggested by their affidavits. The consumers in question are Ms Tegan Green, Mr Shayne Muldoon, Ms Heidi Stafford, Ms Marnie Toohey, Ms Bobbie-Jo Lourie and Ms Angel Pokia. 1655 I will return to an assessment of their evidence later in these reasons. 1656 A further element of seeking to answer the factual contentions advanced against CBPL, Channic and Mr Hulbert by the relevant consumers involved evidence called principally on behalf of Channic and Mr Hulbert from Mr Wayne McKenzie and from Ms Georgina Bataillard. Those witnesses have had an association with Mr Hulbert for some time. They each gave evidence about having overheard and having seen Mr Hulbert in his dealings with consumers in which he sat down with each consumer, explained the loan contract and its operation and terms, and engaged in a signing process in securing execution of the contract. In a sense, the evidence of these witnesses is intended to corroborate the general method, practices and procedures adopted by Mr Hulbert, for Channic, in dealing with consumers generally in relation to entering into the loan contract so as to raise an inference that he must have dealt with the consumers relied upon by ASIC in the same way, at least on the balance of probabilities. It will be necessary to return to an assessment of those witnesses later in these reasons. 1657 Much of the contest about whether the loan contract was explained to each consumer goes to the question of whether, in all the relevant circumstances, Channic engaged in unconscionable conduct in entering into the credit contract with each consumer. It also goes to the question of whether the contract was or was not unjust. 1658 Issues relating to the explanation of the instrument itself are not an element of the particular obligations cast upon either CBPL or Channic by the NCCP Act. The loan contract, of course, contains provisions forming the basis upon which credit was provided and the content of those terms (such as amount of credit, total repayments, amount of interest and other such matters as extensively already described) are relevant to the question of whether the credit contract is or is not unsuitable for the particular consumer. Some aspects of the evidence of Mr Humphreys 1659 As to Mr Humphreys, the evidence he gave is described extensively at Part 8 of the reasons. 1660 These features of his evidence are important. His role at Supercheap was to present cars for sale, answer enquiries and show people the cars. He was a salesman, not the manager, and he received direction from Mr Hulbert who was the dealer principal and business proprietor: [402] of these reasons. He was paid by Supercheap on a commission basis only, of $300 for each car sold. He did not receive a wage. Later he was paid a finance commission. He sold about 10 cars each month and also assisted people with finance applications. About 80% of sales were the subject of finance applications. The price of the car was a decision for Mr Hulbert as was the amount of the deposit: [404] and [405]. Mr Humphreys did not prepare the various PAMD Act documents. Nor did he sign them for Supercheap: [406]. He assisted in taking "applications for credit review": [407]. He was a credit representative for CBPL from 1 July 2010. For every finance application that settled, Mr Humphreys was paid a commission of $100.00. His income, by commission, may have been as much as $3,800.00 per month: [409]. 1661 Mr Humphreys recalls that Mr Hulbert used software for the preparation of finance contracts. He thinks it was supplied by Min-it Software. Mr Humphreys recognised the Credit Application Form. He could not recall whether he received instructions about its use: [412]. He said the client would fill it in but, if assistance was needed, Mr Humphreys would fill it in. A Veda credit check would be obtained. Mr Humphreys was taken to examples of income recited in the form and examples of Centrelink statements produced by consumers. Mr Humphreys cannot remember whether he was given any instructions on what to do with figures recorded in such income statements: [414]. Nor can he recall whether he was given any instructions about what he might need to do concerning deductions recited in such statements: [416]. As to the various items of expenditure in the Credit Application Form, Mr Humphreys thinks that he was not required to complete every line in that box due to the use of a "living allowance": [419]. Mr Humphreys operated on the basis that Mr Hulbert was applying an approach adopted from the people at Min-it Software about a set amount to cover living expenses: [420]. Mr Humphreys thought that the "ticked boxes" on the form reflected the documents the applicant had with them at the time or documents they brought back with them later. Mr Humphreys is fairly sure that he received bank statements and they were used to identify deductions out of bank accounts: [425]. Mr Humphreys did not recall observing patterns reflected in those statements and he did not receive any instructions about looking for that pattern: [428]. 1662 As to the Preliminary Test, Mr Humphreys said that his usual practice was that the income was inserted and some expenses. The document used a calculator or in-built formula that identified whether the consumer had a surplus or deficit: [430]. He explained his understanding of the "living expenses" formula. Mr Humphreys thought that the interest rate of 48% was set into the calculator: [439]. 1663 He could not be sure whether his usual practice was to discuss the interest rate with the consumer and he does not know whether a copy of the Preliminary Test was given to the consumer. Mr Humphreys was taken to the Preliminary Test for the Nobles which showed a surplus of $16.51. Mr Humphreys understood that if the Preliminary Test showed a surplus, the application was worthy to send to Channic. It had to be positive which meant more than zero: [441]. Mr Humphrey would prepare a template credit application letter addressed to Channic. It had attachments and was given to Mr Hulbert. 1664 Mr Humphreys did not regard it as part of his role to carry out a credit worthiness assessment: [454]. He collected data and information. It was not his role to verify statements about income and expenses made by the consumers: [454]. He did not remember whether it was part of his role to make a preliminary assessment as to a consumer's suitability for a loan or whether it was his role to verify the information in support of the application: [456]. Mr Humphreys did not recognise the Credit Suitability Assessment document. Nor did he recognise the Loan Inquiry Checklist. Mr Humphreys did not specifically remember the Verification Checklist: [457], [458] and [459]. Mr Humphreys regarded the letter from Mr Hulbert asserting that the proposed loan was not unsuitable for the consumer, was "a formality" due to other discussions: [460]. 1665 As to brokerage, Mr Humphreys was "pretty sure" it was his role to tell the consumer about the brokerage fees although he could not "specifically recall that". He "imagined" that he would have received instructions from Mr Hulbert about that matter and the highest at which he could put it, under oath, was that he was "fairly sure" that the brokerage issue was raised with consumers: [464]. These are qualified answers to straightforward questions. Mr Humphreys doubts whether finance was arranged with any financier other than Channic although there may have been examples of that. As to the CBPL documents of 14 November 2010, Mr Humphreys has no recollection of the Representatives Policies and Procedures document. He thinks he used the Loan Inquiry Checklist document although he could not remember whether he received any instructions about how to use it. He thinks he used the Verification Checklist although he did not remember the form. He thinks he did use the Credit Suitability Assessment form. 1666 As can be seen from these examples, the evidence of Mr Humphreys is that he has no real recollection of the various documents which were to be used for making a loan inquiry or conducting verification or conducting a suitability assessment. He thinks he discussed brokerage with consumers but he cannot really be sure. The function of the Preliminary Test document was to identify whether there was a surplus of at least $1.00 which would justify passing on the loan application to Mr Hulbert and Channic. Mr Humphreys allowed the consumer to fill out the Credit Application Form but would help the consumer if the consumer needed assistance. Mr Humphreys did not obtain detailed information about each of the categories of expenditure set out in the Financial Information box on that form. He had no instructions about looking for patterns of expenditure and income in bank statements (assuming he had them), and he had no instructions about pursuing inquiries about deductions recited in Centrelink letters. He understood that the Preliminary Test contained a built-in calculator using a standardised formula. It operated as a substitute for obtaining the actual expenses of the particular consumer the subject of the particular credit assistance transaction and ultimately the credit transaction. This approach informs the approach of CBPL to all of the consumers (apart from Ms Raymond) relied upon by ASIC. 1667 I am satisfied that in respect of these consumers, CBPL failed to make a preliminary assessment as required by the NCCP Act and failed to determine whether the proposed contract with Channic would meet the consumer's requirements or objectives and failed to determine whether the contract would be unsuitable (or not) for the consumer. I am satisfied that CBPL failed to make reasonable inquiries about those matters and that the Preliminary Test did not properly relate to the period proposed for entering into the credit contract with Channic. I am satisfied that CBPL failed to make reasonable inquiries about the consumer's financial situation and failed to take reasonable steps to verify the consumer's financial situation. I am also satisfied that in respect of the consumers, it was likely that they would only be able to comply with their obligations with substantial hardship. 1668 I will return to the detail of the contraventions later in these reasons. Some aspects of the evidence of Mr Hulbert 1669 It is necessary to now consider aspects of the evidence of Mr Hulbert. 1670 As already mentioned, Mr Hulbert sets out in his affidavit the general method and process he applied in dealing with each consumer in entering into the loan contract. He also gave an explanation about those matters in oral evidence: [1131] to [1134] of these reasons. The version of the events given by Mr Hulbert as his general method was inconsistent with each narrative of the events given by each of the consumers who gave oral evidence. Mr Hulbert was asked why it was, in his view, that the consumers had such a different impression of things. Apart from the notion that ASIC had "put this whole thing to them", Mr Hulbert thought that the answer lies in the circumstance that the consumers are recalling facts after Mr Hulbert had explained the loan contract and at a time when those consumers were then in a mode of initialling and signing the contract. Mr Hulbert explained that the process did not involve his "explaining things" and then initialling pages at that point. Rather, after Mr Hulbert and the consumer had been through the whole document, he would ask the consumer whether they needed any further explanation. He says that they all, of course, responded that they understood. Mr Hulbert emphasises that throughout the oral evidence of the consumers a number of them mentioned that Mr Hulbert did say things to them which they described as "blah blah blah". Mr Hulbert expressed the view that some of them did not wish to hear any explanation. 1671 As to the issue of Channic making an assessment as required by the NCCP Act, determining whether the contract will be unsuitable for the consumer (or not), determining whether it is likely that the consumer will be unable to comply with financial obligations under the contract if the contract is entered into in the period covered by a proposed assessment, whether it is likely (or not) that the consumer could only comply with those obligations with substantial hardship, whether Channic has made reasonable inquiries about the requirements and objectives of the consumer and the financial situation of the consumer or taken reasonable steps to verify the consumer's financial situation, Mr Hulbert had the following general things to say. 1672 Mr Hulbert would have regard to bank statements, Centrelink income statements, proof of wage slips and other information he describes in his principal affidavit. He described income statements, wage slips and bank statements as primary source material relied upon by Channic for verification of the consumer's financial circumstances. One of the documents provided to Channic, and thus Mr Hulbert, was the Preliminary Test document undertaken by Mr Humphreys which used the Standardised Expenses modelling for "general living expenses". The letter from Mr Humphreys also enclosed the Credit Application Form. That document suffered from the deficiencies already mentioned. As to the evidence of Mr Humphreys to the effect that if an applicant's income exceeded expenses (producing a positive surplus), CBPL would recommend the application to Channic, Mr Hulbert accepted that in most cases Channic would make the loan if expenses exceeded income. If otherwise, Channic would most likely not approve the loan application. However, Mr Hulbert gave evidence that there would be a "buffer" representing an amount by which income was to exceed expenses when Mr Hulbert considered the loan application. However, he said that there was no specific figure representing the buffer: [1140] and [1141]. Mr Hulbert said that there was no written down figure which would identify a "sufficient surplus" and although the buffer did not have to be "significant" he would "use more than a dollar". 1673 This evidence seemed to be inconsistent with the view he had expressed in an interview with ASIC in which he had said that as long as the buffer was positive, it was acceptable to him for the purposes of lending and that if there was a surplus it would be reasonable to lend in those circumstances. He added that there were loans which were rejected even where surpluses occurred: [1203] and [1204]. Mr Hulbert accepted that he had not previously talked about a buffer in his exchanges with ASIC: [1205]. 1674 As to determining whether a surplus existed, Mr Hulbert accepted that a lot of expenses were not taken into account because the standardised formula was used and he accepted that at the time a suitability assessment was undertaken, he was putting a lot of emphasis on the standardised formula approach: [1141] and [1142]. Mr Hulbert says that apart from the standardised formula other things such as rent and financial loans were taken into account. 1675 Mr Hulbert says that if a consumer's existing financial loan commitments plus rent plus the use of the formula demonstrated that expenses were less than income, the loan would be approved. Most such applications were approved: [1143]. 1676 In making his assessment of the suitability of a loan for a consumer, Mr Hulbert says he took the brokerage expense payable to CBPL into account. 1677 As to the interest rate, Mr Hulbert says that it was not unreasonably high and a rate of that order was necessary to protect Channic's legitimate interests of ensuring business survival. As to cultural considerations, Mr Hulbert said that he offered loans to borrowers from all ethnic and cultural backgrounds. He did not regard a bad credit history as necessarily an indicator of bad future performance. Mr Hulbert says that he generally obtained credit checks and bank statements for recent months and he regarded these documents as reasonable steps for verification of the financial position of the borrower: [1157]. 1678 Because Mr Hulbert placed emphasis upon the use of bank statements in undertaking his verification processes and his assessment of the suitability of the loan for the particular consumer, the question of whether Mr Hulbert had bank statements before him for the relevant consumers was a significant question. Mr Hulbert accepted that no bank statements had been obtained from Brim, Harris, the Nobles and the Yeatmans. Mr Hulbert also accepted that it was possibly correct that if a copy of a bank statement was not on either the Channic or the CBPL file for the consumer, no bank statement had been obtained. He also accepted that it was possibly correct that if any one of the borrowers had obtained a loan from another financier (at some point in time) and no statement for the loan was on either the Channic or the CBPL file, no such statement had been obtained: [1178]. Mr Hulbert, however, did not accept that there were no bank statements on the Channic or CBPL files concerning Kingsburra, Dabah and Mudu: [1178]. 1679 However, Mr Hulbert was taken to the Channic's Verification Checklist concerning Ms Kingsburra which identifies the documents used for verification. That document does not note any reference to a bank or credit card statement as a source document (in the place where provision is made for such a thing). Mr Hulbert's general position was that he would check "very carefully" what source documents had been made available to him when making his assessment. He also accepted that if a bank statement had been on either file it would have been produced to ASIC. He thought that the absence of a bank statement in either file "could be an oversight". The files produced to ASIC for Ms Dabah do not contain a bank statement. The Verification Checklist for Ms Dabah does not "tick" reference to any bank or credit card statement as a source document. Mr Hulbert believed that a bank statement for Ms Kingsburra and Ms Dabah had been obtained. He accepted that if that were so, the Verification Checklist in each case was incorrect. He also accepted that the letter from Mr Humphreys for CBPL for Dabah and Harris makes no reference to a bank statement as an enclosure. He also accepted that the Credit Application Form for Ms Dabah did not identify a bank statement as a supporting document (nor any other document). 1680 It seems very clear that no bank statement was obtained from Brim, Harris, the Nobles, the Yeatmans, Kingsburra, Dabah or Mudu. No such bank statement was available to either CBPL (Mr Humphreys) or Channic (Mr Hulbert) for the purpose of undertaking and discharging the obligations cast upon Channic under the NCCP Act. This is a critical matter because Mr Hulbert said that he placed great emphasis upon that document. 1681 Mr Hulbert gave evidence that he did not have any real or specific recollection of the relevant consumers relied upon by ASIC or the occasion when he went through the loan contract with each of those consumers. Nor did he have any notes on any of the files about going through the loan contract with each consumer: [1182]. 1682 Notwithstanding that the Preliminary Test document prepared by Mr Humphreys for CBPL recited Channic's name on the document, Mr Hulbert did not accept that Channic and CBPL were not operating separately. 1683 As to the Credit Application Form, Mr Hulbert gave evidence that that form had been supplied by him to Mr Humphreys as a template for use by Mr Humphreys. Mr Hulbert said that he generally knew the way in which Mr Humphreys approached filling out the form. Mr Hulbert accepted that in relation to the form concerning Mr Gordon and the form concerning Ms Stanley, no expenses are recorded in relation to living expenses. Mr Hulbert accepted that no attempt was made to make an assessment of a borrower's actual living expenses, that is to say, their day-to-day expenses, because the Standardised Expenses model was used. However, Mr Hulbert said that he did talk to consumers about their expenses. In the example put to Mr Hulbert, he said that he had spoken to Mr Gordon and also Ms Stanley about their circumstances. However, he also accepted that the Channic Verification Checklist which contains a section for identifying personal interviews makes no reference to those interviews. Mr Hulbert accepted that none of the Channic files relating to the consumers relied upon by ASIC contains a reference, in the Verification Checklist or otherwise, to any personal interviews having been carried out: [1195]. 1684 Mr Hulbert was taken to another anomaly in relation to the files concerning Mr Gordon and Ms Stanley. Mr Hulbert accepted that the letter from Mr Humphreys for CBPL applying for a loan is dated 29 September 2010. Mr Hulbert also accepted that the Credit Suitability Assessment form records that the assessment was undertaken on 24 September 2010, five days before the application was made. Mr Hulbert said that the assessment date of 24 September 2010 is a typographical error on the document: [1196]. 1685 As to the forensic quality of the inquiries made by Channic in reliance upon the Credit Application Form supplied by Mr Humphreys, Mr Hulbert was taken to the form prepared for Ms Dabah. Mr Hulbert recognised the handwriting of Mr Humphreys on the form in the Financial Information box. Mr Hulbert accepted that the form recorded "very few details" and was properly described as "derisory". It seems that in relation to Ms Dabah, there was no bank statement and the financial information in the Credit Application Form was "derisory". That led to the proposition put to Mr Hulbert that he was not really interested in the living expenses of the consumer borrowers and he said that he took note of their living expenses to make sure that they were "not out of the ordinary". Mr Hulbert agreed that he accepted that the way in which the Credit Application Form was filled out was something he accepted in his capacity as a director of CBPL: [1196] and [1197]. 1686 Mr Hulbert was also taken to page 2 of the Credit Application Form for Ms Kingsburra. He accepted that the form contained "not much information about expenses" and that the form was much the same as "most of the other forms" for the relevant consumers in issue in these proceedings. 1687 As mentioned, Mr Hulbert accepted that the form does not acknowledge any bank statement having been supplied by Ms Kingsburra. As to bank statements, to the extent that Mr Hulbert had bank statements from any consumer, he did not examine them for the purposes of working out the expenses of the consumer. He examined them to check whether the consumer had other loan contracts or whether there was other income available to the consumer. 1688 Another anomaly concerns the CBPL and Channic files in relation to Ms Kingsburra. The application letter from Mr Humphreys is dated 6 July 2010. It encloses five attachments. Mr Hulbert responded to that letter on 6 July 2010 saying that the credit contract was not unsuitable for Ms Kingsburra. Mr Hulbert accepted that he would not have sent that letter without having undertaken the verifications required by the NCCP Act. He thought that the letter to Mr Humphreys might have the wrong date on it and someone else might have prepared it as members of his office staff often prepared these reply letters. Mr Hulbert accepted that Channic's Credit Suitability Assessment might have been prepared by an office staff member. It too is dated 6 July 2010 although he thought that the presence of that date on the document did not mean that it was done on that date. Mr Hulbert also accepted that Channic's Loan Inquiry Checklist, signed by him, is also dated 6 July 2010 and he thought that somebody else probably prepared it. Mr Hulbert also accepted that Channic's Verification Checklist is also dated 6 July 2010. He thought that date was possibly incorrect. It too could have been prepared by one of the office staff. When asked what steps he had taken to verify the information received from CBPL, Mr Hulbert said that he probably spoke to the borrower at some point although he did not tick the Verification Checklist to that effect. 1689 Plainly enough, it is very odd that all of these events took place on 6 July 2010. If there was to be conformity with, and discharge of, the obligations cast upon CBPL and Channic under the NCCP Act, those obligations could not have been met and discharged on 6 July 2010. Perhaps this is why Mr Hulbert thought that some of the dates were incorrect. The further anomaly about this example is that Mr Hulbert accepted that the Centrelink statement was not delivered until at least 13 July 2010 which is the date of the letter. Mr Hulbert regarded this matter as indicating that the date of 6 July 2010 in the documents was a date error. Mr Hulbert thought that the Verification Checklist could not have been done until 13 July 2010. He also thought that Mr Humphreys might have made an error in the date. 1690 As to these matters, Mr Hulbert accepted that his letter contained a date error, the Verification Checklist contained a date error, the Loan Inquiry Checklist contained a date error and the Credit Suitability Assessment contained a date error. Mr Hulbert also accepted that if these errors occurred then Mr Humphreys made an error about the date, Mr Hulbert had made an error and the staff member who had prepared a document also made an error. 1691 Mr Hulbert also accepted, as a director of CBPL, that the Preliminary Test undertaken by Mr Humphreys for CBPL makes no attempt to suggest that the proposed loan is "not unsuitable" for the borrower. Mr Hulbert believed that because the application had been sent to Channic, Mr Humphreys must have formed the view, although not stated anywhere in the document or otherwise, that the proposed loan was not unsuitable for the consumer. 1692 The role of bank statements has already been mentioned. Mr Humphreys said that could not recall being given any instructions from Mr Hulbert to look for any form of income and expenditure pattern of behaviour as part of a loan inquiry or as an element of any other function cast upon CBPL by the NCCP Act. Mr Hulbert gave evidence about bank statements generally and said that he had spoken to a lot of customers about their accounts and he understood that many of them do not keep money in their accounts. Mr Hulbert was pressed with the notion that "by necessity" the relevant consumers were spending, each week, more than they were receiving. Mr Hulbert regarded that as a matter of their choice and said that he did not "pick up" from an examination of bank statements (to the extent that he had bank statements) that consumers had expenses which exceeded their income. That followed because Mr Hulbert said that he did not know "what they spend their excess money on". Mr Hulbert accepted that he did not inquire about what they spend their excess money on. 1693 Another anomaly concerned the dates or timeframe when relevant documents might have been completed. In the case of the documents relating to Ms Dabah and Ms Harris, the Credit Suitability Assessment document is dated 9 July 2010 yet it reflects the form of a pro forma document adopted by the Board on 14 November 2010. Mr Hulbert thought that the documents approved on 14 November 2010 might have been used earlier in time. Mr Hulbert was asked whether he was sure that the forms were not filled out much later than the dates they bear. His response was "I don't believe so". Mr Hulbert was asked whether it was the case that the Loan Inquiry Checklist, Verification Checklist and the Credit Suitability Assessment document were, in fact, not signed off before the loan contracts to which they related were entered into. Mr Hulbert said: "I don't believe so". However, he accepted that, at times, it could have been his general practice to sign these documents after the loan contracts were entered into: [1225]. Mr Hulbert accepted that he may possibly have said to ASIC investigators earlier in time that it was his general practice to sign documents such as the Loan Inquiry Checklist after the contract was issued although he rather thought that he signed such documents before signing the loan contract on occasions and after entering into the loan contract on other occasions. In the transcript of the exchange with ASIC investigators, Mr Hulbert accepts that he says that it was his general practice to sign the Loan Inquiry Checklist after the contract was entered into. 1694 As to the Verification Checklist concerning the Dabah/Harris files, Mr Hulbert said that he did not complete the document. It was completed by one of his staff. He did not necessarily read it before he signed it. It was not necessarily his general practice to read that document before signing it. As to whether it was his general practice to consider whether or not the verifications reflected in the document were reasonable before he signed it, Mr Hulbert described the document as a standard form one "that'd be completed". As to whether he turned his mind to whether or not the statements in the document were true before he signed it, he said that he relied upon the staff to enter the appropriate boxes and he described it as a clerical task. When asked about this exchange with ASIC investigators, Mr Hulbert said that it was not his general practice to sign that document after the loan contract issued although he did so on some occasions. It happened either way 50% of the time and thus he accepted that his earlier evidence was incorrect. 1695 Mr Hulbert said that he relied a lot on the material that came from CBPL. He said that as far as he was aware, CBPL was verifying the information from the consumers. As to expenses, Mr Hulbert again confirmed that he did not verify expenses which were built into the cost of living Standardised Expenses model. Mr Hulbert accepted that the items which are recited on the Verification Checklist which were checked were only those documents that came to Channic from CBPL as supplied by Mr Humphreys. Mr Hulbert accepted that there was no additional inquiry that was undertaken "for either acquiring the information or verifying the information which appears on the Verification Checklist": [1245]. 1696 As to brokerage, Mr Hulbert accepted that none of the borrowers received an invoice for brokerage. 1697 In the case of Ms Kingsburra, Mr Hulbert accepted that the Kingsburra assessment is for the period 6 July 2010 to 6 August 2010 and that although there is a reference to available income of $3,623.49, the expenses are not addressed there. That was so because of the use of the benchmark formula. Mr Hulbert said that generally he "picked up" the figure off the Preliminary Test in relation to income. Mr Hulbert accepted that, in the case of an example put to him, the standard form recital that: "We further concluded that the customer understands any costs or additional risks associated with any product features specified above", failed to recognise that the consumer did not know any of the features of the loan until they were presented with the loan contract. Mr Hulbert responded by saying that the consumer had been told about brokerage. Mr Hulbert accepted that the same process of Channic filling in the documents in this way was adopted in every case of the consumers relied upon by ASIC: [1252]. 1698 A further anomaly relates to the signing process. I have already mentioned that Mr Hulbert explained the apparent inconsistency between the evidence the consumers gave and Mr Hulbert's version of events (based on his general practice), on the footing that the consumers were probably recalling the moment in time when they were dedicated to signing the contract at the very end of the explanation process. Mr Hulbert said that he first explained the contract and then at the end went into the signing process. He explained that sometimes there would be a variation upon that approach and he would explain the document to the customer on a page by page basis and they would initial and sign at that point. Mr Hulbert accepted that he had told ASIC examiners on 13 May 2013 that the contract was signed and initialled as Mr Hulbert was going through it with the consumers. Mr Hulbert's explanation of the inconsistency between the evidence of the consumers and his own understanding of the general practice seemed to be at odds with the more emphatic version put to ASIC examiners that it was "of course" the position that the contract was signed with the consumer as Mr Hulbert was going through the contract and, after a page was explained, "they sign it". 1699 Two other matters should be mentioned. Mr Hulbert accepted that the Yarrabah consumers who gave evidence in the proceedings were people who "tend to agree" with most of what is put to them although Mr Hulbert thought that was rather true of most consumers. Mr Hulbert also accepted that in some cases the car sold to a particular consumer was above the market price although he says that was not generally so. Mr Hulbert did not accept that the motor vehicles, in terms of kilometres travelled, had exceeded their useful life. 1700 I have examined aspects of the evidence of Mr Humphreys and Mr Hulbert in this way because it represents the foundation upon which the respondents fundamentally seek to answer the claims of ASIC in relation to each of the relevant consumers (apart from admissions). I am satisfied that there are many examples of confusion in the understanding of Mr Hulbert about particular aspects of the controversial facts. Mr Hulbert believes that there were errors in relation to dates both at the level of CBPL and Channic whether through Mr Hulbert or office staff. Mr Hulbert is confused about the true position in relation to the provision of bank statements by seven of the principal consumers. Neither CBPL nor Channic had those bank statements. Neither CBPL nor Channic had regard to that document in undertaking and discharging the obligations cast upon each of them by the NCCP Act. The Credit Application Form manifestly fails to properly isolate the expenses of the consumers. The attempt to identify actual expenses is both derisory and perfunctory. It cannot be taken seriously as a document which attempts to isolate actual expenses or provide a person with a basis for understanding or inquiring into a consumer's expenses and, ultimately, the balance between their income and expenses, with a view to forming an assessment of the suitability of the loan. The documents suggest that applications were made for finance and very rapidly approved. So far as Channic is concerned, the only verification steps were those taken in relation to an examination of documents supplied by CBPL. 1701 I am satisfied that Channic has failed to discharge its obligations under the NCCP Act. I will turn to the particular breaches later in these reasons. The documents 1702 The files that CBPL have in relation to the relevant consumers were obtained by ASIC under statutory notices. The files are reproduced in their entirety and form an exhibit to the affidavit of Mr Foo together with the statutory notices: Part 21 of these reasons. The same position prevails in relation to the Channic files. The documents from those files also form part of the tender bundle. Mr Hulbert gave evidence that he provided all the relevant files to ASIC under the notices. He accepted that the files as delivered would reveal inquiries made, steps taken and activities undertaken in relation to each of the relevant borrowers. Mr Hulbert also accepted that if documents were not on the relevant file, it was probably because those documents have not been obtained. As already mentioned, Mr Hulbert was taken to a number of files for CBPL and Channic concerning consumers where those files did not have bank statements on them. Mr Hulbert was also taken to Channic's Verification Checklists which do not make any reference to a bank statement having been considered. Later in the proceedings Mr Hulbert suggested that bank statements included within the CBPL and Channic files were not included in the exhibit to Mr Foo's affidavit or the tender bundle. I have examined this question earlier in these reasons and I am entirely satisfied that the documents produced to ASIC from the CBPL and Channic files are the documents which were on those files and that they are the documents exhibited to Mr Foo's affidavit forming the tender bundle. If those files do not contain a copy of a bank statement or any other document which might be regarded as relevant to the proper discharge of obligations cast upon CBPL and/or Channic by operation of the NCCP Act, I am satisfied that such a document was not before CBPL or Channic at the relevant time. The consumer witnesses called on behalf of the respondents 1703 The evidence from these witnesses is put forward on the basis that their evidence is probative of the explanation of the loan contract to the consumers relied upon by ASIC. In other words, that an inference can be drawn about what occurred in relation to each of the relevant consumers by reason of practices adopted by Mr Hulbert in relation to the six consumers called on behalf of all respondents. As already mentioned, these issues go to the unconscionable conduct part of the case and the question of whether contract terms are unjust. None of the respondent witnesses were persons from Yarrabah. All of the consumers relied upon by ASIC apart from Ms Raymond and Ms Brim were residents of Yarrabah. In addition, Mr Shayne Muldoon, Ms Bobbie-Jo Lourie and Ms Marnie Toohey entered into loan contracts after the ASIC investigations had commenced and thus the contextual imperative to explain the loan contract was entirely different to that which prevailed in the case of the consumers ASIC relies upon. I also accept that different positions were taken by these witnesses about their experience of the practice adopted by Mr Hulbert. Ms Green says that Mr Hulbert explained the first few pages of the loan contract to her and asked her to read the remainder of the document. She says the process took about an hour. Ms Toohey says that Mr Hulbert took her through the entire contract. Ms Lourie says that he took her through the first nine pages of the document. She could not recall the remaining part of the document. Ms Pokia says that Mr Hulbert took her through the entire contract. Apart from these differences of treatment which are said to give rise to similar fact conclusions, the evidence of these witnesses is, in varying degrees, unsatisfactory. Ms Green was affirmative to the point of being didactic about some matters. She was quite confused about the repayments concerning the "Better Loans and Finance" loan and seemed unwilling to make any concession about that matter. She rather thought that Mr Hulbert had told her about a cooling off period in relation to the loan itself. She thought that the lender was Mr Hulbert's insurer: [1329], [1335], [1336]. Nevertheless, Ms Green gave evidence about the steps Mr Hulbert took to explain aspects of the contract: [1314] – [1320]. Mr Muldoon also said that Mr Hulbert explained the contract to him. He said that Mr Hulbert explained the contents of the early pages of the contract and the matters in relation to obtaining legal advice: [1353] – [1355], [1368] – [1370]. Ms Lourie recalled, as mentioned, that Mr Hulbert had explained the first nine pages of the document although she gave evidence that she did not recall very much of the day: [1467] – [1470]. The probative weight of Ms Pokia's evidence is essentially reduced to nothing because she ultimately said that she could not be quite sure whether there was anything much in her affidavit evidence that was actually correct. She also said it was hard for her to distinguish what had happened on two separate occasions which she seemed to conflate into one version of events. 1704 I also accept that in respect of these witnesses there are significant educational and cultural differences as compared with the consumers relied upon by ASIC. Ms Green has tertiary qualifications and experience with other lenders. Mr Muldoon is neither an Aboriginal nor a person from Yarrabah and he gave evidence that he had some experience in purchasing cars on finance. Ms Stafford was educated to Year 12 level at Gordonvale. Ms Toohey was also educated to Year 12 and had obtained supplementary qualifications in childcare. She was also studying for a degree in business administration. Ms Toohey is neither an Aboriginal person nor a person from Yarrabah. Ms Lourie is self-employed. She conducts a business. She completed schooling in New Zealand and has never lived in or visited Yarrabah. Ms Pokia was educated to Year 12. 1705 It follows that the circumstances of these witnesses are different to those of the consumers upon which ASIC relies and in some cases the engagement between Channic and some of the consumers occurred at a moment in time when Channic would have been much more astute to more comprehensively discharging perceived obligations about explaining the contracts. 1706 There is, however, an aspect of the evidence given by these consumers which is consistent with the evidence in relation to the consumers upon which ASIC relies. In the case of these consumers called by the respondents, very limited financial information was obtained from them, the Credit Application Form in each case suffers from the same difficulties in relation to the consumers upon which ASIC relies. No real attempt was made to obtain accurate financial information from the six borrowers called by the respondents and no reasonable inquiries were made about their true financial circumstances. CBPL failed in that regard. It applied a notional amount for living expenses without seeking out the actual expenses and very limited verification of information occurred. No preliminary assessment was prepared. There is no suggestion that recourse was had to the manuals CBPL was supposed to be using in November 2010. Those manuals addressed the scope of the inquiries, verifications and preliminary assessments which were supposed to be undertaken. None of this material is on the CBPL files for the six consumers. The same position prevails in relation to Channic in this sense. The Channic files contain Loan Inquiry Checklists but they record very little in the nature of inquiries. The Verification Checklists show that very little was done by way of seeking information to discharge a verification function. No further or additional verification steps were taken. That probably arises because Channic was content to rely upon the inadequacies of the CBPL material. Again, the files show the oddity that the relevant documents are all dated on the same day which is the day that the consumer applied for the loan. Often, the consumer attended the car yard, made an application for finance on the same day and the Channic Loan Inquiry Checklist, Verification Checklist and Suitability Assessment document are all dated on the same day. If that is so, the obligations under the NCCP Act could not possibly have been properly discharged. If, as Mr Hulbert thinks, those documents were not prepared on that day but were prepared and dated that day for some reason, the documents are simply unreliable. 1707 Accordingly, the lending methodology and the inquiry, verification and assessment methodology were fatally flawed. 1708 The other thing to note about the consumer witnesses called by the respondents is that they too were people who were confronting very challenging domestic and financial circumstances. Ms Green was unemployed. She had four children. She was unable to obtain a loan elsewhere. She had a history of defaults and had previously defaulted in loan repayments to Channic. Supercheap and Channic were entities of last resort for her. Mr Muldoon was unemployed and was entirely dependent upon his fortnightly Centrelink payments which were exhausted at the end of every fortnight. He depended entirely upon those receipts. He was at Supercheap and dealing with Channic because he was desperate to have a car. Ms Stafford was unemployed. She had a child and was unable to obtain a loan elsewhere. She had defaulted in repayments to Channic on an earlier loan. She also had previous defaults. She too exhausted her funds. Ms Toohey had many credit defaults and had been rejected on credit applications on many occasions. She and Ms Lourie were unable to obtain finance elsewhere. Like the consumers upon which ASIC relies, these consumers were in difficult financial circumstances, needed a vehicle, needed to finance the vehicle through credit and there was no other place where they could obtain finance to achieve the aim of purchasing a motor vehicle. 1709 I will address aspects of the evidence of Mr McKenzie and Ms Bataillard later in these reasons. Additional considerations 1710 In examining and evaluating the evidence of the witnesses and reaching conclusions about the questions in controversy, I have also had regard to these considerations. First, one of the consumers the subject of the proceedings is Mr Vance Henry Gordon. Mr Gordon died prior to the trial commencing. His affidavit was tendered under the provisions of the Evidence Act 1995 (Cth) without objection. However, the respondents were not able to test the evidence of Mr Gordon. In these reasons, I have made assessments about Mr Gordon's evidence recognising the limitations confronting the respondents about that evidence. Ms Raymond swore an affidavit in the proceeding on 18 June 2014. However, she was medically unfit to give evidence and was unable to attend Court. The respondents objected to the admission into evidence of her affidavit. However, I admitted Ms Raymond's affidavit again recognising the inherent limitations confronting the respondents in not being able to cross-examine Ms Raymond and test her evidence. In the course of these reasons, in making general observations about the evidence and in reaching findings about each of the contended contraventions in respect of the 10 consumers upon which ASIC relies, I make references to "the relevant consumers". In that sense, I am talking about all of the 10 consumers in issue. However, in the final section of these reasons I determine the extent to which I am satisfied that contraventions are made good against CBPL, Channic and Mr Hulbert concerning Mr Gordon, and Channic and Mr Hulbert in the case of Ms Raymond, having regard to the limitation in each case confronting the respondents in not being able to cross-examine those two deponents. In the case of CBPL, I note in the reasons that CBPL did not engage with Ms Raymond. Ms Raymond engaged directly with Channic. Observations about the conduct of CBPL are confined to observations excluding any reference to Ms Raymond, in any event. In addressing the evidence, I will not continue to note throughout the reasons that the relevant observations about the 10 consumers are subject to an assessment of whether the inability to cross-examine Mr Gordon and Ms Raymond then leads to a different result in relation to the conduct concerning each of them. 1711 Second, throughout the respondent's submissions, references are made to inferences the respondents say ought to be drawn based upon the principle in Jones v Dunkell (1959) 101 CLR 298. That principle is that an unexplained failure by a party to call witnesses may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case: Jones v Dunkell at 308 per Kitto J; 319 to 321 per Windeyer J; [1215], Cross on Evidence, 9th Ed, the Hon J D Heydon. 1712 The Jones v Dunkell inferences are said to arise in this way. The respondents say that Mr Hilary Harris recommended Supercheap to Ms Prunella Harris. The respondents say that he "had some discussion with her about her obtaining a loan there" and he was "present on 10 September 2010 when the contract was signed on 20 September 2010" [emphasis added]: para 42 of the submissions. Apart from the obvious difficulty with that second statement, the circumstance that some discussion took place between Mr Harris and Ms Harris about obtaining a loan from Supercheap (which was ultimately obtained from Channic) does not give rise to a Jones v Dunkell inference. The circumstance that Mr Harris was "present" on a relevant day does not give rise to a Jones v Dunkell inference either. It is not at all clear what "being present" means in terms of the state of knowledge of Mr Harris or what he might have said about any matter in issue in the proceedings. 1713 The second Jones v Dunkell inference is said to arise in this way. The respondents say that Ms Kerryn Smith's brother Yasserie accompanied Ms Smith on the first, second and third days that she attended the Supercheap car yard. The respondents say that the unexplained failure to call Mr Yasserie Smith to give evidence gives rise to a Jones v Dunkell inference. No such inference arises simply on the basis that Mr Yasserie Smith attended the car yard. 1714 The third Jones v Dunkell inference is said to arise in this way. Mr William Noble was a joint borrower with Mrs Joan Noble. Mr Noble and his niece, Ms Elsa Dabah, were present at Supercheap on 2 March 2011. Ms Elsa Dabah introduced Mrs Noble to Mr Hulbert. The respondents say that Ms Elsa Dabah was present during the signing process for the loan contract. They say that Ms Elsa Dabah had previously bought a car from Supercheap. She had had a conversation with Mrs Noble about Mrs Noble purchasing a car from Supercheap. The respondents say that the unexplained failure to call Ms Elsa Dabah and Mr William Noble gives rise to a Jones v Dunkell inference. Mrs Noble was, of course, called to give evidence. She gave an affidavit and she was extensively cross-examined. The circumstance that she was introduced to Supercheap by Ms Elsa Dabah and that Ms Elsa Dabah may have been present at moments in time at the car yard when things happened does not give rise to a Jones v Dunkell inference. The circumstance that Mr Noble was not called is more relevant. However, I am not satisfied that an inference ought to be drawn. The failure to call Mr William Noble is consistent with the notion that his evidence went no further than Mrs Noble's evidence and a forensic decision may have been made that it was unnecessary to call Mr Noble. I am not willing to draw an inference that a failure to call Mr Noble suggests that his evidence was unhelpful to Mrs Noble. 1715 The fourth Jones v Dunkell inference is said to arise in this way. Ms Charlotte Mudu's brother-in-law, Mr Errol Gordon took her to Cairns to buy a car the first time she attended Supercheap. Mr Gordon and Mr Aaron Elliott were present when Ms Mudu returned a second time to the car yard when the loan application form was completed and the third time when the loan contract was signed. The respondents say that it "may be" that Ms Mudu relied heavily upon Mr Gordon and it is "likely" that she relied upon the assistance of Mr Elliott. The respondents say that the unexplained failure to call Mr Gordon and Mr Elliott, in these circumstances, gives rise to a Jones v Dunkell inference. I am not satisfied that either of those circumstances properly gives rise to an inference that anything they may have had to say on the questions in issue (if they had anything probative to say on the specific questions in issue at all) gives rise to an inference that their evidence would not have assisted the applicant. 1716 The fifth Jones v Dunkell inference is said to arise in this way. Mr Farren Yeatman was a joint borrower with Mrs Donna Yeatman. The respondents say that Ms Latoya Noble encouraged Mr Yeatman to go to Supercheap to purchase a motor vehicle. The respondents say that the unexplained failure to call Mr Yeatman and Ms Latoya Noble to give evidence gives rise to a Jones v Dunkell inference. There is no basis made out for any such inference arising out of the failure to call Ms Latoya Noble simply because she told Mr Yeatman to go to Supercheap. The failure to call Mr Farren Yeatman is consistent with the notion that his evidence went no further than Mrs Yeatman's evidence and a forensic decision may have been made not to call him. I am not willing to draw an inference that a failure to call the evidence in question suggests that the evidence was unhelpful to the applicant. 1717 The sixth Jones v Dunkell inference is said to arise in this way. Ms Muriel Dabah entered into a loan contract with Channic along with her daughter, Ms Estelle Dabah. The motor vehicle was being purchased for Ms Estelle Dabah. The respondents say that the unexplained failure to call Ms Estelle Dabah to give evidence in circumstances where Ms Estelle Dabah was present when the loan contract was signed gives rise to a Jones v Dunkell inference. I am not satisfied that any such inference arises. The failure to call Ms Estelle Dabah is consistent with the notion that her evidence went no further than the evidence given by her mother. 1718 In all of these examples, it must be remembered that the contest on aspects of the evidence concerning the engagement between Mr Hulbert and each consumer (apart from any evidence about the role of Mr Humphreys in CBPL) is a contest between the evidence called from each consumer who gave evidence of their direct knowledge of the facts and circumstances of their engagement with Mr Hulbert on the one hand, and the evidence of Mr Hulbert which was that he had no independent recollection of his dealings with any of the consumers in any material degree, on the other hand. It was not necessary for each consumer to corroborate his or her evidence. The failure to call evidence from other individuals in the circumstances of the engagement of those other persons, as described by the respondents, does not warrant a Jones v Dunkell inference being drawn. 1719 The respondents also say that the evidence of the consumers is unreliable because the affidavits were obtained up to four years after the events in question. The respondents say that the recollection of the consumers is simply not reliable. However, the consumers were subjected to lengthy cross-examination. They were tested about their evidence. I do not accept that their evidence is unreliable. 1720 The respondents say that the evidence of the experts, in effect, counts for nothing. They say that Mr Southon's anthropological evidence is outdated and the conditions and factors he speaks about are no longer relevant. They say that Yarrabah is not remote from Cairns in any relevant sense and that Yarrabah is not properly understood as a disadvantaged community. Yarrabah is geographically removed from Cairns in a material way. It is not remote in the sense that it is entirely isolated or something akin to a community many hundreds of kilometres from any metropolitan centre. It is sufficiently geographically removed that the residents of Yarrabah need a car and the car must be one capable of reliably progressing up the steep incline over the range to reach the community. 1721 The Yarrabah Aboriginal community, on any view of the relevant sociological and economic factors (some of which were put to Mr Hulbert), is undoubtedly a disadvantaged community in terms of its engagement with the wider community, the level of unemployment and the dependence upon social security Centrelink benefits. Mr Southon's evidence remains contextually relevant and I have already indicated the way in which I have treated his evidence. 1722 As to Mr Vasilakis, he has given the best evidence of value. I examine that evidence later in these reasons. However, I have taken into account the criticisms the respondents make of that evidence. 1723 It should also be remembered that the position adopted by the respondents in answer to the pleading of the amended statement of claim was, initially, that they admitted all of the contraventions. The respondents then dismissed their counsel and resiled from those admissions. Their instructing solicitor, Dr Spence, then assumed the carriage of the matter and conducted the trial. The only explanation given for electing to resile from the admissions earlier made was that the respondents had made those admissions "in order to save costs". 1724 It is now necessary to consider each of the contended contraventions asserted by ASIC against each of the respondents. I will begin with the contraventions asserted against CBPL and I will examine each contended contravention by reference to each section of the NCCP Act said to be contravened. I will then consider the position under the Corporations Act and the claims made against Mr Hulbert personally. I have taken into account the submissions of ASIC and the submissions of the respondents in respect of each of the contended contraventions. Section 117 of the NCCP Act 1725 ASIC alleges a contravention of s 117(1) of the NCCP Act against CBPL in respect of each of the borrowers upon which ASIC relies (other than Ms Raymond). In this section, when I refer to the "relevant consumers", I am referring to all of the consumers relied upon by ASIC other than Ms Raymond. The contraventions are said to be that CBPL failed to make reasonable inquiries about the consumer's requirements and objectives in relation to the credit contract and failed to make reasonable inquiries about the consumer's financial situation and failed to take reasonable steps to verify the consumer's financial situation: s 117(1)(a), (b) and (c). The inquiries and verification to be undertaken by CBPL are required for the purpose of supporting the ultimate determination of whether the proposed loan is unsuitable or not for the consumer in the circumstances of the particular consumer's requirements and objectives and financial situation. 1726 As the review of the evidence demonstrates, CBPL generally undertook the following processes before making an application to Channic for a loan on behalf of the relevant consumer: a document was signed enabling a credit report to be obtained; the Credit Application Form was completed; some supporting documents were obtained; Mr Humphreys completed a Preliminary Test document; and Mr Humphreys wrote a letter to Channic attaching the Preliminary Test, Credit Application Form, ID and some supporting documents. As the review of the evidence reveals, the Credit Application Form reflects very few details of the consumer's actual expenses. In that sense, the form is a "derisory" or perfunctory attempt to reflect the real expenses. The only expenses taken into account are those reflected in the Preliminary Test. As to income, the Credit Application Form recites Centrelink income details on the front page, in the main. For all of the relevant borrowers (apart from Ms Brim), CBPL provided Channic with the Credit Application Form and the Preliminary Test attached to a letter. In the case of Ms Kingsburra and Ms Harris, CBPL substantially completed the form. In the case of Mr Gordon, Ms Stanley, Ms Brim, Ms Smith and the Nobles, CBPL denies that it substantially completed the form. In the case of Ms Dabah and Ms Harris, Mr Humphreys filled out parts of the form although it is said for CBPL that they chose to fill out parts of the form and sign it. In the case of Ms Mudu and Mr Elliott, CBPL denies that Mr Humphreys filled out parts of the form. CBPL says that they chose to complete the form. In the case of the Yeatmans, CBPL does not admit that it filled out the form for them. As to these issues, Mr Gordon says that the handwriting on the form is not his. He says that the handwriting on Ms Stanley's form is not hers. Ms Brim wrote in the information concerning "Personal Details" and "References". However, the information in the Financial Information box was not written by her. Ms Smith says that her surname and name are in her handwriting but not her middle name and that her address is in her handwriting. However, the writing at the bottom of the Personal Details box did not appear to be her writing and nor did the writing next to the vehicle retail price appear to be her writing. She says that on the second page, the writing in the References box is her handwriting and she does not know how the figures in the Financial Information box came to be in the document. Mrs Noble says that on the first page of Mr Noble's form, his name is in his handwriting but none of the other handwriting is his handwriting. On p 2, the handwritten income amount is neither the handwriting of Mr Noble or Mrs Noble. In the case of Ms Dabah, the only handwriting of hers on the form is the date under her signature. The handwriting in the form for Ms Estelle Harris is the handwriting of Mr Humphreys. As to Ms Mudu, she recognised her name in her own handwriting and the word "Centrelink". Also, the handwriting in the References box is her handwriting. However, she does not recall writing any of the information or anything else in the Financial Information box. Mrs Yeatman said that she completed p 1 of the form including her name, the References box and the Financial Information box. She put in the financial information as she was asked questions about financial matters. 1727 The forms contain very little information about expenses and certainly no information about vehicle expenses, cost of insurance and other expenses. As mentioned, Mr Hulbert describes the form in the case of Ms Estelle Harris as derisory. As already mentioned, Mr Hulbert accepted that very few details were obtained about living expenses on the basis that CBPL and Channic were essentially looking to ensure that the living expenses of the borrowers were not out of the ordinary. 1728 The typical supporting documents were ID, a Centrelink statement (for those borrowers receiving Centrelink income) and a bank statement. The evidence shows that requests were made for some other classes of documents such as payslips. In the case of the relevant consumers, it seems that only three consumers provided bank statements. The Credit Application Form contained a place to tick off whether a bank statement had been obtained. In these proceedings, the documents from the files show a correlation between an absence of any tick for a bank statement on the Credit Application Form and no bank statement in the files. 1729 As I mentioned in relation to the documents more generally, I am entirely satisfied that in circumstances where the files and documents provided to ASIC under the statutory notices do not contain a copy of a bank statement and there is no indication on the Credit Application Form of a bank statement having been provided, then it follows that it is much more likely than not that a bank statement was not obtained by CBPL or Channic and was not before those companies when an assessment was made of the suitability of the loan for the individual particular consumer in the circumstances of that consumer. 1730 As the review of the evidence reveals, CBPL obtained Centrelink income statements for almost all of the relevant consumers for whom they provided credit assistance. That is not true of Mr Gordon and Ms Stanley (as joint borrowers). Nor is it true of the Yeatmans who were employed. In the case of Ms Kingsburra, a Centrelink income statement was obtained but credit assistance was provided before that date. Ms Kingsburra is the example earlier mentioned where all the documents are dated 6 July 2010 but the letter was obtained on 13 July 2010. In the case of the Yeatmans who were employed, there are no payslips or bank statements in the CBPL file. 1731 The files reflect that bank statements were obtained for Mr Gordon and Ms Stanley, Ms Smith and Ms Raymond. 1732 Bank statements were not obtained for Ms Brim, Ms Kingsburra, Ms Dabah and Ms Estelle Harris, the Yeatmans, Ms Prunella Harris, Ms Mudu and Mr Elliott, and the Nobles. 1733 However, in those cases where bank statements were obtained, neither Mr Humphreys nor anyone else for CBPL, was able to give evidence that CBPL actually had regard to the bank statements either generally or, in particular, in the case of Mr Gordon and Ms Stanley, Ms Smith or Ms Raymond when assessing whether the proposed loan might or might not be unsuitable for the consumer. 1734 CBPL prepared the Preliminary Test. 1735 The document is set out, in each case, throughout these reasons. It consists of income (based on information drawn from the Centrelink benefits received by the consumer or an income statement where a consumer is employed), rental payments, commitments on other loans, repayment of any advances made by Centrelink and repayable under the CentrePay arrangements, the repayment under the proposed Channic loan and the adoption of a standard amount for living expenses. Mr Hulbert gave evidence about the origin of the Standardised Expenses formula and, as the reasons show, the formula was based on living expenses of $950.00 for a single person or $1,300.00 for a couple and an additional amount of $325.00 for each dependent child, per month. The Preliminary Test document is signed by Mr Humphreys for CBPL. 1736 Section 117(1) of the NCCP Act requires reasonable inquiries to be made about the consumer's financial situation and reasonable steps to be taken to verify the consumer's financial situation. The section directs attention to the particular financial circumstances of the particular consumer. Neither Mr Hulbert nor Mr Humphreys inquired into or verified the actual living expenses of the particular consumer. Mr Hulbert regarded recourse to the Standardised Expenses model for living expenses as a "reasonable" benchmark of the likely actual living expenses of each individual consumer. Like all benchmarks, the model, in its application, presumably seeks to isolate the living expenses for a single person and a couple, adjusted by additional expenses referable to one or more children, as a smoothed out average of a typical basket of such expenses. Mr Hulbert did not simply use the Standardised Expenses model as a reference point for testing the reliability, on a consumer by consumer basis, of the properly identified or isolated actual expenses of that consumer for the purposes of accurately identifying classes of expenses in inquiring into that consumer's financial circumstances so as to determine whether a loan might be unsuitable or not. Rather, Mr Hulbert accepted that the model was a perfectly proper substitute for any inquiry into or verification of a consumer's actual expenses, as to living expenses. A question might arise about whether the adoption of a benchmark directed to particular categories of expenses of a consumer operates as the making of reasonable inquiries about that aspect of a consumer's financial situation and whether adoption of such a benchmark operates as the taking of reasonable steps to verify that aspect of a consumer's financial situation. A conclusion as to that matter in the absence of evidence of actual inquiries about actual expenses would require expert evidence about the formulation of the benchmark, the factors that inform the determination of the numbers derived from the model and the relevance and application of the model to consumers in the cohort of consumers upon which ASIC relies. I am not satisfied that such evidence is available. Nor am I satisfied that such evidence was available to CBPL or ASIC when it acted upon the Preliminary Test incorporating that formula. In any event, the figure selected is ultimately a notional figure in substitution for making actual reasonable inquiries. The adoption of the notional figure is not conduct of "making" reasonable inquiries about the consumer's financial situation or conduct of "verifying" the consumer's financial situation. In truth, it is a substitute for doing either of those things. It is a statement that we at CBPL and Channic do not need to comply with those obligations because we regard the notional formulaic figure as adequately capturing the likely expected living expenses of the relevant consumer. Thus, for CBPL and ultimately Channic, it was not necessary, according to that approach, to capture or isolate in the Credit Application Form, the actual expenses because, as to the living expenses, they are all dealt with according to the formula. Further, the categories of expenses falling within the description "living expenses", according to the formula, are entirely unclear. It was also unclear to Mr Hulbert. The adoption of the model explains why there is very limited information in the Credit Application Form. 1737 It is correct to say that Mr Hulbert was unable to clearly identify the class of expenses covered by the figure derived from the formula. Mr Hulbert also thought that the amount derived from the formula probably included the costs of insurance. Channic, as part of its loan arrangements, required the consumer to obtain comprehensive insurance for the car. It is also correct to say that the living expenses figure reflected in the Preliminary Test did not alter from year to year and thus, did not take account of inflation. As to the source of the formula, Mr Hulbert said that he obtained the formula from an employee of United Financial Services and that he accepted an observation of that person that ASIC had approved the formula. This seems to be the entire state of the evidence about the origin, foundation for, and derivation of the formula. Mr Hulbert rather thought that he had received training from the manager of the Cairns office of United Financial Services in the use of the living expenses formula although there is no evidence of a training program or any other documentation. Mr Hulbert accepted that he had not considered ASIC's Regulatory Guide about responsible lending obligations at the time. The position in relation to the Regulatory Guide is this. ASIC issued Regulatory Guide 209 entitled "Responsible lending conduct" which sets out guidance on responsible lending obligations. The Guide observes that benchmarks might provide an indication of whether a customer's disposable income would be sufficient to enable them to meet their financial obligations under the contract without substantial hardship. The history of the Guide is that it was issued in February 2010 and revised versions were issued in June 2010, March 2011 and February 2013. ASIC sets out observations from the June 2010 version of the Guide (recited at para 209.64). The same observations are contained in the March 2011 version at para 209.66. The observations are these: Benchmarks can be useful tools in the process of determining whether a particular consumer will experience substantial hardship as a result of meeting the obligations of a credit contract. Applying benchmarks, as set out in the following paragraphs, may provide a credit licensee with an indication of whether a consumer would be assumed to be exposed to substantial hardship. For example, such benchmarks could assess whether a consumer's disposable income is: (a) below a level where they do not have funds to meet their realistic living costs and those of their dependants; (b) below an amount based on a particular objective indicator (e.g. the Henderson Poverty Index plus a certain margin); or (c) below the maximum applicable level of government benefits for a person in the financial and family situation of the consumer. 1738 ASIC contends that the effect of the Regulatory Guide is that benchmarks can be used to indicate that a customer is likely to have, as a minimum, a particular level of expenses which should alert the lender to exercise care when considering whether or not they have been informed of the totality of expenses. As to this particular Regulatory Guide, the evidence is that Mr Hulbert did not have any recollection of when he first came across these Regulatory Guides: T, p 917, lns 31-32. 1739 As already mentioned, CBPL had developed a Credit Manual which was adopted on 14 November 2010. The Credit Manual made provision for a Loan Inquiry Form, a Verification Checklist and a Suitability Assessment Form. As discussed in the course of the evidence, each of those forms is supported by a policy document which explains and sets out how the forms are to be used for the purpose of complying with and discharging obligations cast upon CBPL by the NCCP Act. The Effective Date of the document is 14 November 2010. None of these forms appear on any of the CBPL files before or after 14 November 2010. Neither Mr Humphreys nor Mr Hulbert gave evidence about why it was that CBPL had not used the forms designed, as a matter of policy, to be used in order to comply with the statutory obligations arising under the NCCP Act. It seems that Mr McKenzie did not use the forms either (at least in the case of Ms Green). 1740 I am satisfied that CBPL failed to comply with ss 115 to 118 of the NCCP Act having regard to the Preliminary Test and the manner in which it was compiled. 1741 Once CBPL had undertaken the steps described in the course of these reasons, the next step it took was to formulate and deliver a letter to Channic based on a template. The letter was signed by Mr Humphreys for CBPL and recited that the consumer applicant was seeking a loan in a particular amount. The letter typically suggested an amount that the consumer wished to pay by way of repayments. The amount recited in the letter represented the price for the motor vehicle less the deposit paid by the consumer. That was the amount to be financed under the credit contract. The amount to be the subject of the credit contract does not include, at least as recited in the letter, any amount for a brokerage fee being the fee to be paid to CBPL for providing credit assistance in helping the consumer to apply for a loan to Channic. I have already mentioned some of the anomalies in the dates concerning some transactions. In particular, the letters from Mr Humphreys often bear a date and the letter from Mr Hulbert advising CBPL that the sought after loan is not unsuitable for the consumer, bears the same date. CBPL charged brokerage of either $500.00 or $550.00 or $990.00. The analysis of the evidence in these reasons sets out each transaction. ASIC contends that CBPL did not tell the consumer that any brokerage was payable concerning the making of an application for finance to Channic (the consumer having attended Supercheap for the purchase of the car). ASIC also says that the consumers were not told that they were entering into an entirely separate agreement with CBPL by which that company would charge brokerage for facilitating the completion of a credit application and referring it to Channic. ASIC also says that the consumer was not told that the brokerage payable to CBPL would be added to the amount of credit being sought from Channic. In the pleading, CBPL and Channic (and Mr Hulbert) do not admit the factual allegations of ASIC about these matters. However, it is correct to say that Mr Hulbert asserts that Mr Humphreys for CBPL typically informed consumers/borrowers that brokerage was payable. Moreover, he says that when he came to mention brokerage when explaining the loan contract he would say to the consumer that Mr Humphreys had, no doubt, already discussed the question of brokerage with the consumer. Apart from these matters, Mr McKenzie was called to say that he overheard Mr Humphreys talking to consumers about brokerage. Ms Bataillard also says that she overheard Mr Hulbert talking about brokerage. As already mentioned, the very highest at which Mr Hulbert could put his recollection of having told consumers about brokerage is that he was "pretty sure" that his role involved telling the consumer about brokerage. He also said that, as to this role of telling a consumer about brokerage, he "imagined" that he would have done so. 1742 It seems very likely that the first time when a consumer heard about the notion of brokerage being payable for any steps taken by CBPL was when Mr Hulbert explained the loan contract and mentioned the notion of brokerage and pointed out the amount payable. I am satisfied that the first occasion upon which the consumers relied upon by ASIC became aware of any brokerage fee payable to CBPL was at the moment in time when they were called upon to consider and execute the loan contract. 1743 As I have indicated, I accept the evidence of the consumers relied upon by ASIC on these matters. The facts are these. Ms Kingsburra did not know that brokerage was payable for arranging the loan. Ms Prunella Harris did not know what brokerage was and did not know about CBPL until ASIC mentioned these matters to her. Mr Gordon knew that he had to pay $500.00 but thought that this fee was for selling him the car. He did not know about a brokerage fee until he was advised of it by ASIC. Ms Brim does not recall being told about CBPL and did not know anything about a brokerage fee being payable. Ms Smith did not know about a brokerage fee and she did not know who CBPL was or what brokerage was. She says that no-one talked to her about paying $550.00 to obtain finance. Mrs Noble did not know about CBPL and had not been spoken to about brokerage. Ms Dabah was not told about brokerage. Ms Mudu says that she did not know anything about brokerage. She says that she was not told that an amount of $990.00 would need to be paid as a fee for borrowing the money. Mrs Yeatman says that no-one talked to her about paying brokerage. She was not told that CBPL was to be paid $990.00 for brokerage. 1744 Having regard to these matters, which I accept, I am satisfied that Mr Humphreys did not tell these consumers that a brokerage fee was payable. I am also satisfied that these witnesses did not understand that a brokerage fee was payable or was to be the subject of an amount included in the loan contract even though Mr Hulbert may have mentioned brokerage and the amount of the fee payable as brokerage. 1745 One of the features of s 117(1) is that CBPL, before making the preliminary assessment required by the Act, must make reasonable inquiries about the consumer's "requirements and objectives" in relation to the credit contract. Plainly, CBPL did not make inquiries of each consumer about his or her requirement for credit assistance which would engage the payment of a brokerage fee and his or her requirement about whether any such brokerage fee was to be the subject of credit assistance in the form of applying to Channic for loan funds in a credit contract which would include the amount of a brokerage fee. 1746 In this respect, CBPL has contravened s 117(a) of the NCCP Act in respect of each of the relevant consumers. 1747 Another aspect of the credit assistance being provided by CBPL involved making an application for a loan to Channic which necessarily involved the payment of interest. The requirements and objectives of each consumer included obtaining a loan to enable the consumer to purchase the motor vehicle and the extent of that loan was to be the balance of the purchase price payable for the car after payment of the deposit. The balance payable to Supercheap had to be financed because the consumers/borrowers did not have the money to pay cash for the vehicle. A critical question would be the amount of interest payable on the borrowed funds and whether each consumer had "a requirement" or "an objective" for a certain rate of interest to be paid on the borrowed funds, or possibly no more than a certain rate of interest, to be paid on the borrowed funds. Plainly enough, the amount of interest payable would determine the amount of the repayments in conjunction with the term of the loan. The evidence of a number of the consumers/borrowers is that they thought they were financing the balance purchase price for the car. Some of them thought that Supercheap was carrying the debt on some form of instalment payment plan. Those consumers/borrowers thought that no interest was payable. In setting out the evidence of Mr Humphreys at Part 8 of these reasons, I noted that he was asked about his usual practice in relation to discussing the interest rate with the consumer. Again, Mr Humphreys said that he was not sure what his usual practice was in that regard because it was three or four years ago. He seemed unable to reflect upon or recall his usual practice about whether he discussed the interest rate with the consumer although he thinks he discussed these topics: payment (the repayment amount each week or fortnight), the term of the loan and the interest rate. However, he could not say exactly. 1748 The evidence then, at the level of CBPL, is that Mr Humphreys cannot say affirmatively that he told each of the relevant consumers that interest would be payable or that the interest rate would be 48% on the funds borrowed. The equivocation or lack of certainty in the evidence of Mr Humphreys about this central matter is very odd. Mr Humphreys was assisting consumers to apply for credit and he knew that the application would be sent to Channic and he understood that Channic charged an interest rate of 48%. It seems very unlikely indeed that Mr Humphreys would be unable to recall whether he adopted a usual practice of telling the consumer that the likely interest rate, or the interest rate in fact, payable on the borrowed funds, would be 48%. The answers given by Mr Humphreys, on oath, to the effect that he was not sure about his practice in this regard and that he could not say exactly whether he told the consumer that the interest rate was, or would be likely to be, 48%, reflects a reluctance on the part of Mr Humphreys to say under oath that he did tell the consumer that the interest rate was 48%. I infer that Mr Humphreys was reluctant to say that, under oath, because he did not in fact say it to the consumer at the time. 1749 Against the evidence of Mr Humphreys, pitched at the low bar at which it was put by Mr Humphreys, is the evidence of the relevant consumers. It remains the best evidence on the topic and it is to be accepted. That evidence is this. Ms Kingsburra did not know the interest rate applicable to the loan. Ms Prunella Harris did not know what the interest rate was. She says no-one explained it to her and she does not know what a rate of 48% per annum means. Mr Gordon said that he did not know what the word "interest" meant and an interest rate of 48% had no particular resonance for him. Ms Brim says that Mr Hulbert told her about the interest rate and this occurred when he was going through the loan contract with her after she had paid her deposit and CBPL had provided credit assistance to her. Ms Smith says she was not told of the interest rate and did not know what a rate of 48% per annum meant. Mrs Noble did not know the interest rate and did not know whether 48% was either a good rate or a bad rate. She says she did not know that she would be repaying more than the cost of the car less the deposit. Ms Dabah says that no-one told her the interest rate was 48%. She too said that she did not understand what an interest rate of 48% meant. Ms Mudu says that she did not know about interest and does not understand anything about a 48% interest rate. Mrs Yeatman accepted that she now knows what interest is. She said that if someone had explained it to her at the time she would have understood it. However, no-one told her that she would be paying interest at the rate of 48%. 1750 At least so far as CBPL is concerned, the consumer witnesses called by the respondents suggest that they were not told about the interest rate until the moment in time when they were called upon to sign the loan contract and engage with Mr Hulbert in the process of entering into the loan contract. 1751 I am satisfied that the failure on the part of CBPL to raise with the relevant consumers the interest rate that would or would be likely to apply to a loan they might take up, is a failure to make reasonable inquiries about the consumer's requirements and objectives in relation to the credit contract for the purposes of s 117 of the Act. 1752 ASIC also contends that CBPL contravened s 115 of the NCCP Act on the footing that CBPL failed to take into account the additional expense of each consumer of owning, running, maintaining and ensuring the motor vehicle they were intending to purchase from Supercheap. The conduct is said to constitute a failure to make any proper assessment of the financial situation of each consumer as required by s 115 because these important costs were not taken into account having regard to the "very limited income of the consumers". ASIC notes that the respondents admit that in undertaking the preliminary assessment, CBPL did not take into account these additional costs of owning and running a motor vehicle or the cost of insuring it. The cost of insurance was a condition of the loan contract. The respondents correctly observe that the following consumers had to pay the following insurance premium each month: Ms Kingsburra - $56.75; Ms Yeatman - $49.12; Mr Gordon - $15.28; Ms Mudu - $67.46; and Ms Brim - $60.41. I accept that these monthly expenses are significant additional expenses on top of the loan repayment amounts in the context of the income of each of the relevant consumers and their other expenses. 1753 I am satisfied that the applicant correctly asserts that in respect of this matter, a contravention of s 115 is made good. 1754 I will now address the contended particular deficiencies in relation to matters relevant to each of the relevant borrowers. 1755 As to Ms Kingsburra, I am satisfied that CBPL did not make reasonable inquiries or take reasonable steps to verify the financial position of Ms Kingsburra having regard to these factors. The Credit Application Form does not incorporate any reference to a debt of $1,700.00 owed by Ms Kingsburra to GE Money notwithstanding that Ms Kingsburra told Mr Humphreys about it. The form also fails to record an expense of $30.00 per week payable by Ms Kingsburra, at the time of purchase of the motor vehicle, for her mobile telephone. As to the rent/mortgage amount and the amount in relation to utilities, no amount is recited in the form. The form records that these amounts are "already taken" in the sense that they are deducted from Ms Kingsburra's Centrelink benefits through the CentrePay mechanism. However, Ms Kingsburra's rent was not so deducted. Moreover, the Preliminary Test recites that Ms Kingsburra's income is $3,298.49 per month net. However, the Centrelink income statement for Ms Kingsburra shows that this amount is her gross income per month. Ms Kingsburra says that her regular fortnightly payments were about $1,500.00 from which monies were automatically deducted. In addition, the form does not list expenses in the form of school expenses for books, uniforms, stationery and shoes needed for children of about $400.00. Ms Kingsburra was also repaying a Centrelink advance in an amount of $25.00 per week ($100.00 per month). Further, Ms Kingsburra paid $170.00 per month for gas. There is another odd aspect of CBPL's engagement with Ms Kingsburra. I have already mentioned the anomaly of the dates. The evidence is that CBPL obtained the Centrelink statement on 13 July 2010. The Payment Instruction Deduction History in the CBPL file for Ms Kingsburra has a date of 12 July 2010. It must have been provided to CBPL on or after that date. In addition, Ms Kingsburra provided a letter from her de facto partner about the expenses he was meeting in relation to groceries. Ms Kingsburra provided the letter to Mr Humphreys on the day that she returned with the Centrelink statement. That must have occurred on or after 12 July 2010. Ms Kingsburra says it occurred on 13 July 2010. 1756 I accept that it seems much more likely than not that the CBPL Preliminary Test was undertaken well before the relevant information was obtained. It may be that the Preliminary Test was conducted after the receipt of these documents and then backdated to give the appearance that they were in fact consistent with the discharge of CBPL's obligations under the Act. 1757 I am satisfied that there is a clear failure on the part of CBPL to make reasonable inquiries of Mrs Kingsburra's financial situation and a failure to take reasonable steps to verify Ms Kingsburra's financial situation. 1758 As to Ms Prunella Harris, she was repaying an amount of $207.81 to Radio Rentals at the relevant time. This amount is not included in the Preliminary Test. The Centrelink income statements for her show deductions of $278.00 per fortnight which are not included in the Preliminary Test and another fortnightly commitment of $65.50 not included in the Preliminary Test. These amounts are $602.33 per month and $141.92 per month respectively. Thus, the total monthly expenses not taken into account in the Preliminary Test are $744.25. 1759 I am satisfied that CBPL in providing "credit assistance" to Ms Harris has failed to have regard to these expenses and has thus failed to make reasonable inquiries about her financial situation and has failed to take reasonable steps to verify her financial situation. 1760 As to Mr Gordon and Ms Stanley, neither Credit Application Form is signed. No information as to their living expenses was obtained. In those circumstances, I am also satisfied that CBPL failed to make reasonable inquiries and failed to take reasonable verification steps. 1761 As to Ms Brim, her Centrelink income statement is recited as $1,245.09 per month. There seems to have been no further inquiry of Ms Brim about the funds available to service the repayment obligation. At the relevant time, Ms Brim was paying an amount of $75.79 per month to Radio Rentals in respect of particular lease arrangements. These matters were not taken into account by CBPL. I am satisfied that CBPL failed to make reasonable inquiries of Ms Brim and failed to take reasonable steps to verify the financial situation of Ms Brim. 1762 In relation to Ms Smith, her Centrelink income statement shows deductions of $259.18 per month. However, CBPL's Preliminary Test recites the deductions as $136.92 per month and thus understates the monthly commitment by $122.26 per month. The failure to identify, correctly, the monthly deduction, is unreasonable. It reflects a failure to make reasonable inquiries about her financial situation and a failure to take reasonable steps to verify, correctly, her financial situation. 1763 As to the Nobles, the Centrelink income statement for Mrs Noble shows deductions of $100.00 and $71.50 each fortnight ($371.58 per month) and the Centrelink income statement shows a deduction in the case of Mr Noble of $100.00 per fortnight ($216.66 per month). Those deductions, for the Nobles, amount to $588.24 per month. The CBPL Preliminary Test does not show any deductions. I am satisfied that CBPL failed to make reasonable inquiries of the Nobles and failed to take reasonable steps to verify the financial situation of the Nobles. 1764 As to Ms Dabah and Ms Estelle Harris, Ms Dabah had established a deduction regime with Centrelink (CentrePay) by which $50.00 per week ($108.30 per month) was deducted from her benefits. This deduction was not included in CBPL's Preliminary Test document. Deductions of $25.62 per fortnight and $135.00 per fortnight were being made from the Centrelink benefits paid to Ms Harris. The Preliminary Test failed to take into account the second amount (amounting to $292.50 per month). I am satisfied that CBPL failed to make reasonable inquiries to identify this monthly expense and failed to take reasonable steps to verify the expenses of Ms Dabah and Ms Harris. 1765 Thus, I am satisfied that, for all the reasons discussed, CBPL failed to comply with the requirements of s 117(1)(a), (b) and (c) in respect of these relevant consumers (apart from Ms Raymond). It should be remembered that the only basis of the remuneration of Mr Humphreys was a commission on a completed sale of a motor vehicle (payable by Supercheap) and a finance commission payable by Channic on the entry of a consumer into a loan contract. Also, the view of Mr Humphreys was that so long as the Preliminary Test resulted in a positive surplus, the applicant was worthy of referral to Channic for finance. The incentives for encouraging Mr Humphreys and thus CBPL to make reasonable inquiries about the financial position of each consumer and to take reasonable steps to verify the consumer's financial situation discouraged bringing the consumer's actual expenses to account as part of a reasonable inquiry process or a process of taking reasonable steps to verify the consumer's financial situation. The relevant assessment to be made by CBPL is whether the proposed loan for the particular consumer is not unsuitable having regard to the financial circumstances of that individual consumer (among other considerations). CBPL did not gather the actual financial position of each of the consumers in issue. Nor did it use its own manuals and checklists. The failure to make reasonable inquiries of the consumer's financial position made it impossible for CBPL to verify that which it had not reasonably inquired into. Section 115 of the NCCP Act 1766 Section 115 has already been examined in these reasons. 1767 Put simply, it, relevantly, casts a statutory prohibition upon CBPL providing credit assistance to a consumer, on a relevant day (the assistance day), by suggesting that he or she apply, or assisting the consumer to apply for a particular credit contract with, in this case, Channic, unless CBPL has, within 90 days before the assistance day, made a preliminary assessment of the kind required by the NCCP Act (s 115(1)(c)(i)) and the assessment covers the period proposed for entering into the credit contract (s 115(1)(c)(ii)) and the inquiries and verification required by s 117 (as just described) have been undertaken: s 115(1)(d). I accept that the period of 90 days does not include the assistance day itself having regard to the NCCP Act and s 36 of the Acts Interpretation Act 1901 (Cth). 1768 Having regard to s 115(1)(d), CBPL was prohibited from providing credit assistance on the assistance day because it had failed to discharge the obligations cast upon it by s 117(1)(a)(b) and (c) of the NCCP Act. The two other elements of s 115(1)(c) are that CBPL's preliminary assessment (to be made within the 90 day period before the assistance day) must be in accordance with s 116(1) and it must cover the period for entering the credit contract. The preliminary assessment must specify the period the assessment covers and assess whether the credit contract will be unsuitable for the consumer should the consumer enter into the contract: s 116(1)(a) and (b). These requirements also apply, in like terms, to an increase in a credit limit under a credit contract. The Preliminary Test document prepared by CBPL is said to be, by the respondents, the "preliminary assessment" required by s 115(1) in conformity with s 116(1). ASIC correctly submits that CBPL (and for that matter Channic and Mr Hulbert) admits that CBPL failed to comply with s 115(1) in respect of each of the relevant borrowers (apart from Ms Raymond) because, on the day CBPL provided credit assistance to each borrower, it had not, within 90 days before that day (or at all), made a preliminary assessment (in conformity with s 116(1)(a) and (b)) which, first, specified the period it covered and second, contained an assessment of whether the credit contract proposed by CBPL for the consumer would be unsuitable (or not) for that consumer. 1769 The respondents deny a contended contravention of s 115(1) said by ASIC to be made good on the footing of a failure by CBPL to comply with s 115(1) in respect of the relevant consumers (except for the qualification below) which contemplates compliance with s 117(a), (b) and (c). The respondents deny a failure to comply with s 117(a), (b) and (c) and thus deny a contravention of s 115(1) referable to that ground. The qualification is this. The respondents "admit" non-compliance in the case of Ms Kingsburra although the paragraph of the amended defence is responsive to a different paragraph of the statement of claim. ASIC contends that the pleaded contravention on this footing is not denied and is thus admitted by reason of r 16.07(2) of the Federal Court Rules 2011. As to Ms Smith, the allegation is not responded to in the amended defence and is thus said to be admitted although, as to the pleading of the facts of the contravention of s 117 concerning Ms Smith, that matter is denied by the respondents. I proceed on the footing that a contravention of s 115(1) by reason of a failure to satisfy the s 115(1)(d) matter is also denied or intended to be denied. In the case of the Nobles, the s 115(1) contravention (on this footing) is admitted although the separate matter of a contravention of s 117(1) is denied. I proceed on the basis that the respondents intended to deny the s 115(1) contravention as to the Nobles, at least as to this ground. The same position prevails concerning Ms Mudu and Mr Elliott. 1770 In its submissions, ASIC says that it does not contend that an additional breach of s 115(1) arises by reason of a failure to comply with s 117(1) by the required date. ASIC contends for a contravention of s 117(1) (which I have found) and a contravention of s 115(1) by reason of a failure to comply with s 115(1)(c) and its relationship with s 116(1). Section 118 of the NCCP Act 1771 Section 118 has already been discussed in these reasons. 1772 It provides, relevantly, put simply, that the credit contract will be "unsuitable" if, at the time of the preliminary assessment it is likely that the consumer will be unable to comply with his or her financial obligations under the contract or could only do so with substantial hardship; or the contract will not meet the consumer's requirements or objectives, if the contract is entered into in the period proposed for it to be entered: s 118(2)(a) and (b). 1773 ASIC contends that CBPL has contravened s 118 in respect of each of the relevant consumers (apart from Ms Raymond). These contraventions are denied. The respondents admit that no preliminary assessment was made in conformity with s 116(1)(a) and (b) (except in respect of Ms Prunella Harris and Ms Dabah and Ms Estelle Harris where the respondents deny that no preliminary assessment was made in conformity with s 116(1)(b). However, they say that the Preliminary Test is the preliminary assessment and at the time of the Preliminary Test it was not likely that the consumer would be unable to comply with his or her financial obligations or only do so with substantial hardship. Nor is it likely, they say, that the contract would not meet the consumer's requirements or objectives. ASIC says that each proposed loan contract was unsuitable on both the "financial obligations" ground (except in the case of Mr Gordon and Ms Stanley) and the "requirements or obligations" ground (including Mr Gordon and Ms Stanley) for each of the relevant consumers. Section 118(2) uses a familiar phrase, "it is likely that". The question, for example, of whether a provision of a proposed contract "would be likely to have" a certain effect within the statutory framework of the Competition and Consumer Act 2010 (Cth) is well understood. I accept that whether the circumstances contemplated by s 118(2)(a) or (b) are, at the time of the preliminary assessment, "likely" involves asking whether, at that time, there is a real and not remote chance or possibility that the consumer will be unable to comply with his or her financial obligations under the contract or only be able to do so with substantial hardship. Similarly, the question is whether there is a real and not remote chance or possibility that the contract will not meet the consumer's requirements or obligations. The term "unable" means "not able" to comply with the financial obligations assumed by the consumer under the contract. Section 118(2)(a) contemplates two possibilities. The first is that the consumer is not able to comply with his or her financial obligations under the contract which means any and all of the consumer's financial obligations under the contract and the second is that the consumer could only comply with those obligations with substantial hardship. The likelihood or real chance of either event must be judged at the time of the preliminary assessment to be made by the credit assistance provider. It requires a forward-looking assessment of whether there is a real chance that the consumer will be unable to comply with his or her financial obligations as they fall due under the contract or only comply with them with substantial hardship. The term "substantial hardship" means hardship of substance, that is, significant hardship. The repayments under the loan contract were either weekly or fortnightly future commitments over a defined term. They included repayment of the credit advanced and an interest component calculated over the term at 48%. There were other obligations to be met as well. The question of whether there is a real chance that a consumer will be unable to comply with his or her financial obligations is to be answered according to all the circumstances of the particular consumer relevant to his or her ability (or not) to perform those forward-looking financial obligations. Those circumstances would, no doubt, comprehend, in the main, a proper and accurate understanding of the consumer's income, the sources of income, any existing and continuing deductions from that income and an accurate understanding of the consumer's actual expenses so as to understand the financial capacity of the consumer, out of available net receipts, to comply with the new financial obligations under the proposed credit contract. The consumer's domestic and family circumstances may well be relevant. The consumer's credit history and whether, by and large, a consumer has demonstrated a pattern of meeting like or other financial obligations would, no doubt, also be relevant. Whether the consumer has a partner, family member, parent or friend who is willing to support the consumer financially in a materially legal way might also be relevant to the consumer's ability to comply with his or her financial obligations. 1774 Section 118(1) provides, as it applies here, that for the purpose of a preliminary assessment under s 116(1) about entering into a credit contract, CBPL must assess that the credit contract will be unsuitable in the circumstances of s 118(2). For the purpose of determining whether the s 118(2) circumstances exist, the only information that can be taken into account is, relevantly here, information "about" the consumer's financial situation, requirements or objectives which, at the time of the preliminary assessment, CBPL had reason to believe was true or which CBPL would have had reason to believe was true if CBPL had made reasonable inquiries or undertaken reasonable verification steps under s 117. ASIC says that CBPL regarded bank statements as containing information not only "about" the consumer's financial obligations but information required by CBPL to enable CBPL to make an assessment of whether an application for finance should be passed on to Channic: that is, whether the consumer's application was "worthy". The bank statements therefore fall within s 118(4)(a) (quite apart from CBPL's own actual approach to their utility) as they are documents which contain information about the consumer's financial situation. Mr Hulbert says that CBPL sought bank statements from the relevant consumers. CBPL knew of them as documents which provided a relevant source of information. CBPL knew that direct debit arrangements to particular accounts were part of the proposed loan contract (about which it was giving credit assistance) as Mr Humphreys was advising about that very instrument. The direct debits would be made to the consumer's accounts of which statements could be obtained. In fact, bank statements were only obtained from three consumers (as mentioned earlier) had CBPL obtained the bank statements, as a function of making reasonable inquiries, the statements would have revealed information about the financial situation of each consumer which CBPL would have had reason to believe was true as each statement simply reflects the factual history of transactions. 1775 I accept that the relevant bank statements reveal the following matters about the following consumers. 1776 As to Ms Kingsburra, her last CBA bank statement (for her account into which her Centrelink benefits were credited), obtained by ASIC, for the period 27 February 2010 to 31 May 2010, prior to the date of CBPL's provision of credit assistance, shows that upon the same day of the receipt of benefits, most of the funds were withdrawn from the account leaving the account in debit. Plainly, Ms Kingsburra was truly dependent upon her Centrelink benefits such that as soon as the payment was received she drew it down on the same day. She did so for the purpose of meeting expenses not so as to carry reserves of cash with her. She did not have residual funds to meet additional loan repayments. Her account was regularly in debit. I accept that the bank statement shows a regular deduction to Credit Corp and regular fortnightly payments of $20.00 to State Penalties and Enforcement Registry. 1777 As to Ms Prunella Harris, her last CBA bank statement (obtained by ASIC) prior to the date of CBPL's provision of credit assistance, for the period 1 May 2010 to 21 July 2010 (for her account into which her Centrelink benefits were credited), shows automatic deductions of $39.00 per month to Oxfam; $30.00 per week ($130.00 per month) to Classic Portrait; $56.46 per week ($244.66 per month) to Chrisco; $45.00 for each period of four weeks ($48.75 per month) to Viptel and payments of $40.00 and $31.80 per week ($311.33 per month) under the description "AUTH PAYMENT". These payments on a monthly basis amount to $734.74. Apart from these regular expenses, the bank statement shows that the account was often in debit with overdrawing fees debited to the account. The statement shows that Ms Harris often had no funds remaining after the day on which her benefits were credited to her account. She withdrew funds when the account was in debit. On the basis of the transactional pattern of income receipts and withdrawals and direct debits, Ms Harris had no available funds to meet additional loan repayments. 1778 As to Ms Brim, her last CBA bank statement, obtained by ASIC, (for her account into which her Centrelink benefits were credited), prior to the date of CBPL's provision of credit assistance, shows that her monthly benefits received into the account were $1,749.00 per months rather than $3,055.00 per month as recited in CBPL's Preliminary Test. The net amount was $1,749.00 after some CentrePay deductions. Apart from those deductions, $70.62 per fortnight ($153.00 per month) was paid to Safrock Finance (Cash Converters) by direct debit. This direct debit was not incorporated into CBPL's Preliminary Test analysis. Again, an examination of the bank statements shows that the account was often in debit; overdrawing fees were charged to the account and the transactional pattern of net income receipts and withdrawals shows that Ms Brim did not have available funds to meet additional loan repayments. 1779 As to Ms Smith, Channic did have a copy of her bank statement on its file. It shows a Cash Converters direct debit had been declined on three occasions due to insufficient funds in the account to meet that debit. It shows a direct debit to Love Springs of $65.77 per months. That debit was not noted on CBPL's Preliminary Test document. Often, Ms Smith had no funds remaining in the account on the day after the day of the receipt of her benefits. Apart from what seems to be an exceptional receipt on 4 April 2011 related to a Cyclone Yasi payment of $5,000.00 (drawn down by the next day to $2,409.67), the transactional pattern of net income receipts (benefits) and withdrawals shows that Ms Smith did not have available funds to meet additional loan repayments. 1780 As to the Nobles, ASIC obtained a copy of Mrs Noble's last bank statement prior to the date on which CBPL provided credit assistance (for the period 29 September 2010 to 1 December 2010), for her account into which Centrelink benefits were paid (the "transactional account"), ASIC also obtained a copy of a bank statement for Mrs Noble's savings account. As to the transactional account, the bank statement shows a direct debit of $65.77 per month to Love Springs. The debit was not incorporated into CBPL's Preliminary Test. It shows a fortnightly loan repayment of $54.50 ($118.08 per month) to CBA. This repayment was shown on CBPL's Preliminary Test as a monthly payment of $54.50. Typically, the balance of the account was low and the account fell into debit attracting overdrawing fees. The savings account does not reveal any significant savings. The transactional pattern of income receipts, direct debits and withdrawals shows that the Nobles did not have funds available to meet additional loan repayments. 1781 As to Ms Dabah and Ms Estelle Harris, ASIC took steps to obtain copies of bank statements. ASIC obtained a CBA bank statement for Ms Harris. It showed a debit balance and suggests that no transactions were implemented through the account. ASIC obtained a bank statement for Ms Dabah from Bendigo Bank Limited ("Bendigo") for the period 5 July 2010 to 4 October 2010 and a bank statement for Ms Harris from Bendigo for the period 29 April 2010 to 1 May 2010. The Centrelink payments for Ms Dabah and Ms Harris were paid into Ms Dabah's account. Again, the transactional pattern is that on the day on which benefits are credited to the account, almost all of the funds are withdrawn from the account often leaving the account in debit. The transactional pattern of income receipts and withdrawals suggest that these consumers did not have funds available to meet additional loan repayments. 1782 As to Ms Mudu and Mr Elliott, ASIC obtained a CBA bank statement for each of them as follows: Mr Elliott, 1 January 2010 to 31 March 2010 (Folder 8, Tab 30); Mr Elliott, 1 April 2010 to 30 September 2010 (Tab 31); Ms Mudu, 1 June 2010 to 9 September 2010 (Tab 32); Ms Mudu, 10 September 2010 to 1 December 2010 (Tab 33). Those statements show that Ms Mudu was paying $30.77 per fortnight to Love Springs ($66.66 per month). Mr Elliott's account was regularly overdrawn. So too was Ms Mudu's account. Overdrawing fees were regularly charged to the respective accounts. These bank statements show that there was no residual financial capacity on the part of these borrowers to meet additional loan repayments. It is not necessary to set out in these reasons the history of the balances in these four bank statements. The position is plain. 1783 As to the Yeatmans, ASIC obtained bank statements (Streamline e access account) for Mrs Yeatman for the period 1 July 2009 to 11 August 2009 and 1 June 2010 to 31 August 2010. The pattern of the transactions is that significant credit balances are followed by relatively immediate expenditures reducing the account to modest balances: $584.90 to $4.32; $605.88 to $4.12; $574.72 to $3.98; $350.80 to $9.46; $567.02 to $5.98. The transactional pattern suggests that these borrowers were not in a financial position where they had funds available to them to pay additional loan repayments. 1784 What follows from all of this is that the credit contracts which CBPL was assisting these borrowers to obtain from Channic were unsuitable for them because they were unsuitable having regard to the financial position of each consumer with the result that, in all the circumstances, it was likely that each consumer would be unable to comply with his or her financial obligations under the loan contract with Channic. I also accept that on the basis of the documents contained in the tender bundle and the oral evidence, the following defaults occurred (among other defaults) in respect of the following consumers: Ms Kingsburra defaulted on her fourth weekly payment and was charged 42 dishonour fees; Ms Harris defaulted on her second fortnightly repayment and was the subject of enforcement and collection processes; Mr Gordon and Ms Stanley ceased making payments in June 2012; Ms Brim defaulted on her first payment and was charged five dishonour fees; Ms Smith defaulted on her second weekly payment and was charged 16 dishonour fees, missed further payments, was subject to enforcement processes, missed further payments and ultimately $12,398.43 was written off after sale of the motor vehicle; the Nobles dishonoured a payment two months into the loan, were charged nine dishonour fees, were subject to enforcement and collection processes and ultimately $8,561.50 was written off after the sale of the motor vehicle; Ms Dabah and Ms Harris defaulted on their first payment, were charged five dishonour fees, missed nine payments, were subject to enforcement and collection processes and ultimately $6,134.10 was written off after the sale of the motor vehicle; Ms Mudu and Mr Elliott defaulted on their first two payments, were charged 11 dishonour fees, missed nine payments and ultimately $7,202.84 (the balance of the debt) was written off without recovery and sale of the motor vehicle. The Yeatmans dishonoured a payment only once (August 2012) and the loan was paid out in February 2012. 1785 I accept that having regard to the pattern of income and expenditure reflected in the bank statements, it would have been clear that the borrowers would not have been able to meet the additional financial obligations of further loan repayments. I also accept, on the issue of unsuitability, that Ms Kingsburra had fortnightly commitments of $991.53 (once her weekly and monthly expenses given in evidence are expressed as a fortnightly expense) which amount to monthly expenses of $2,148.31 ($991.53 x 26 ÷ 12) and that she had found it necessary to obtain bridging short term finance from Cash Converters. 1786 I am satisfied that CBPL contravened s 118(1) having regard to s 118(2) in respect of all of the relevant consumers (apart from Ms Raymond). Section 123 of the NCCP Act 1787 ASIC contends that CBPL contravened s 123. 1788 Section 123(1) casts a prohibition upon, relevantly, CBPL providing credit assistance to the relevant consumers if the credit contract will be unsuitable under s 123(2). That section is in the same terms as s 118(2) except that the question of the point in time when "it is likely" that the consumer will be unable to comply with his or her financial obligations (or be able to do so only with substantial hardship), (factor (a)) or that the credit contract will not meet the consumer's requirements or obligations (factor (b)) is "at the time [CBPL] provides credit assistance" whereas s 118(2) speaks to "the time of the preliminary assessment" (which, for the relevant consumers, is the date of CBPL's Preliminary Test). Other than this temporal aspect, there is no difference in the statutory language. The respondents deny a contravention of s 123(1). The question is whether there is anything which is rendered different in substance having regard to the different point in time when the likelihood of the relevant factors must be judged. All of the evidential conduct matters relevant to factors (a) and (b) were earlier considered. Having regard to the chronology of events as discussed in the course of examining all of the evidence in the earlier Parts, there is no particular difference in the point in time when CBPL "provided credit assistance" by making the application to Channic on behalf of the relevant consumers and the earlier step of undertaking the Preliminary Test to determine a surplus so as, in turn, to determine whether the consumer was a worthy applicant for Channic's consideration. Further, there is no difference in the terms of the credit contract about which CBPL was undertaking a preliminary assessment of unsuitability on the one hand, and providing credit assistance to the consumer, on the other hand. 1789 I am satisfied, for all the reasons mentioned in relation to s 118(2), that CBPL has contravened s 123(1) having regard to s 123(2). Sections 113, 114 and 121 of the NCCP Act 1790 These sections require, relevantly, CBPL to provide each consumer with a credit guide as soon as practicable after it becomes apparent to CBPL that it is likely to provide credit assistance to the consumer: s 113(1). Section 113(2) sets out the classes of information to be provided to the consumer including information about any fees payable by the consumer for the credit assistance; charges for matters associated with providing credit assistance; and the method for working out the amount of the fees and charges: s 113(2)(e). The information is to include the names of the credit providers if CBPL "conducts business with" fewer than six credit providers: s 113(2)(f). Here, Channic was essentially the only credit provider with whom CBPL conducted business. The information is to include information about any commissions, relevantly, that Mr Humphreys was likely to receive from Channic (or any other credit provider) and a reasonable estimate of those commissions and the method of calculating them: s 113(2)(g). 1791 Section 114(1) requires, relevantly, CBPL not to provide credit assistance by suggesting that the consumer apply or by assisting the consumer to apply for a credit contract with Channic (or an increase in a credit limit in an existing contract or that the consumer remain in a credit contract) unless CBPL has given the consumer a quote in accordance with s 114(2) and the consumer has signed and dated the quote (or otherwise indicated acceptance of it) and CBPL has given the consumer a copy of the accepted quote. Section 114(2) sets out the requirements to be met for a quote for the purposes of the prohibition in s 114(1). 1792 Section 121(1) casts an obligation on CBPL, at the same time that it provides credit assistance (by suggesting the consumer apply to Channic for the particular loan contract or by assisting the consumer with such an application, or by assisting or applying for an increase in a credit limit or that the consumer remain in a credit contract), to give the consumer a credit proposal disclosure document which complies with s 121(2). That document must contain a statement of the total amount of any fees or charges the consumer is liable to pay to CBPL (s 121(2)(a)); a reasonable estimate of the total commissions Mr Humphreys (relevantly) is likely to receive in relation to the credit contract (and the method of calculating the amount) (s 121(2)(b); a reasonable estimate of the total amount of fees and charges the consumer is likely to be liable to pay to the credit provider (s 121(2)(c)) or any other person (s 121(2)(d)). If the credit is to be applied to pay any of the amounts falling within s 121(2)(a) to (d), the document must set out a reasonable estimate of "the likely amount of credit that will be available to the consumer after payments under (a), (c) and (d)". As to the application of the disclosure provisions of Ch 3 of the NCCP Act (including ss 113, 114 and 121), the disclosure obligations commenced on 1 January 2011. However, Reg 28N of the National Consumer Credit Protection Regulations 2010 (Cth) (the "NCCP Regulations") which commenced on 1 January 2011 provided for an exemption from some of the provisions of the NCCP Act: s 164, NCCP Act. Section 163(3) of the NCCP Act provides that ASIC may, by legislative instrument, exempt a class of persons from all or some of the provisions of Ch 3 (s 162, NCCP Act); or a class of credit contracts from all or some of the provisions of Ch 3; or declare that provisions of Ch 3 apply to persons or credit contracts as if specified provisions were omitted, modified or varied as specified in the declaration: s 163(3)(a), (b) and (d). 1793 In 2010 and 2011, ASIC made exemptions and modifications to the operation of provisions of the NCCP Act by "class orders". Class Order "CO 10/1230" was effective from 1 January 2011. It made amendments to Reg 28N and had the effect of exempting licensees under the NCCP Act from being obliged to comply with particular provisions of the NCCP Act if the relevant conditions of exemption were satisfied. Sections 113 and 121 were affected in their operation to credit assistance providers. Conditional exemption was given for credit assistance providers from their operation. ASIC says that the conditions CBPL was required to satisfy if the exemption was to apply were these: (a) the person [CBPL] gives the consumer, information, in writing, about the contract details for a consumer to access the approved external dispute resolution scheme of which the person is a member; or (b) the person has given the information mentioned in paragraph (a) to the consumer within the previous 90 days. [emphasis added] 1794 ASIC Class Order "CO 11/760" affirmed and extended CO 10/1230 until 1 October 2011. 1795 Thus, CBPL would not be required to comply with ss 113 or 121 in the period 1 January 2011 to 1 October 2011 if it has complied with the conditions of exemption. The obligations about the provision of a quote to a consumer were also the subject of a conditional exemption by operation of Reg 28N(4). The conditions were these, relevantly, for CBPL as a credit provider: (a) before the licensee provides credit assistance to a consumer, the licensee has entered into a written contract with the consumer setting out the maximum amount that will be payable by the consumer to the licensee in relation to the licensee's credit assistance and other services; or (b) both the following apply: (i) before the licensee provides credit assistance to a consumer, the licensee does not intend to impose a fee or charge on the consumer for providing the credit assistance or other services; (ii) the licensee does not impose a fee or charge on the consumer for the licensee's credit assistance and other services. [emphasis added] 1796 ASIC contends that CBPL failed to comply with ss 113, 114 and 121 in relation to CBPL's dealings with Ms Smith (in April 2011) and the Nobles (in March 2011). The respondents deny the allegations. The respondents are not correct about that matter. The respondents do not deny that the documents required by ss 113, 114 and 121 were not provided. No documents complying with those sections or otherwise satisfying the elements of the transitional arrangements were contained within the CBPL files when produced. For the reasons discussed earlier, I am satisfied that if documents are not within the files of CBPL (and Channic where relevant), it is much more likely than not that they were not brought into existence. I am satisfied that CBPL has failed to comply with ss 113, 114 and 121 in relation to Ms Smith and the Nobles. Channic 1797 It is now necessary to consider the NCCP Act contraventions asserted against Channic. Section 130 of the NCCP Act 1798 Section 130 casts an obligation on the credit provider to do a series of things before making an assessment of the unsuitability (or otherwise) of the credit contract for the applicant consumer. Those things include, relevantly, making reasonable inquiries about the consumer's requirements and objectives for the credit contract; making reasonable inquiries about the consumer's financial situation; and taking reasonable steps to verify the consumer's financial situation. The credit provider, of course, is the party to whom all of the consumer's contractual obligations will be owed (as debtor) and because those obligations are predominantly financial obligations, the question of whether such a contract, with those obligations, will be unsuitable for the consumer engages an obligation on the part of the credit provider to make an assessment about whether, at the time of the assessment, it is likely that the consumer will be unable to comply with those obligations or could only comply with them with substantial hardship. The credit provider must also assess whether such a contract will meet the requirements and objectives of the consumer if he or she enters such a contract. Those assessments can only properly be made, for the purposes of the statutory regime, if, before they are made, the credit provider has carried out the required inquiries and verification and satisfies itself about the consumer's requirements and objectives. 1799 ASIC contends that Channic failed to perform the obligations required by s 130(1)(a), (b) and (c) in respect of all of the relevant consumers including Ms Raymond. ASIC also says that the respondents failed to deny the contravention allegation concerning Ms Raymond and thus, under the Federal Court Rules 2011, the contention was taken to be admitted. Apart from Ms Raymond, the respondents deny each allegation in respect of each consumer. 1800 Plainly enough, the statutory regime requires the relevant inquiries and verification to be undertaken in order to enable the credit provider to make an informed assessment about the suitability of the proposed particular credit contract for the particular consumer in the context of the financial situation of that individual and the requirements and objectives of the consumer in entering into the particular contract. These statutory matters are not matters of form or mere process but represent normative matters of substance. The legislation is beneficial in the sense that it seeks to ensure that a consumer does not enter into an "unsuitable" credit contract (within the statutory notion of that concept) by casting a statutory obligation on a credit provider not to enter into such a contract coupled with a regime for inquiries and verification about the relevant statutory matters and an assessment protocol. These normative matters are not simply a "tick the box" compliance exercise. 1801 ASIC contends that the sequence in which steps were taken is informative. 1802 Mr Hulbert accepted that on some occasions documents were completed after the loan contract was entered into: the Loan Inquiry Checklist; the Verification Checklist; and the Credit Suitability Assessment Form. More fundamentally, Channic, as the evidence demonstrates, did not undertake its own assessment except to the extent that Mr Hulbert looked at the material and documents referred to Channic by CBPL and to the extent that Mr Hulbert may have spoken with some borrowers. Mr Hulbert regarded making an assessment on the basis of that material as one which enabled him to be satisfied about the s 130(1) matters, the s 131(2) matters and the s 133(2)(a) and (b) matters. Thus, he regarded relying upon the CBPL sourced documents as sufficient to constitute Channic's compliance with the inquiry and verification regime. ASIC places emphasis on the issue of the origin of the Veda credit reports as a matter that reflects more widely upon the steps Channic did or did not take to perform its obligations under the NCCP Act. Mr Hulbert says that Mr Humphreys, for CBPL, carried out the Veda credit inquiries and he did them for his own purposes and, also, Channic's purposes of enabling Channic to consider the financial credit history and circumstances of the consumer. Channic paid for the reports to be done. The difficulty, however, is that none of the Veda credit reports are contained on any of the CBPL files for any of the borrowers. So it seems that Mr Humphreys did not require a Veda credit report in respect of any of the relevant consumers (leaving aside Ms Raymond) to enable him to perform CBPL's statutory obligations. Moreover, none of the letters from CBPL written by Mr Humphreys making the application to Channic for each consumer (leaving aside Ms Raymond) enclose a Veda credit report. In fact, each letter encloses an authority Mr Humphreys had procured, signed by each consumer, enabling Channic to obtain a credit reference about the consumer. It seems very unlikely indeed that the Veda credit reports were obtained (by Mr Humphreys or otherwise) before the application for a credit contract was sent by CBPL to Channic, as Mr Hulbert contended. Mr Hulbert is confused and incorrect about these matters. I find that Mr Humphreys did not obtain those reports before the application was made to Channic, by his letter, on behalf of each of the relevant consumers. A wider point is made by ASIC deriving from Mr Hulbert's evidence on this specific topic in the context of the documents and it is this. ASIC says that the documents are simply unreliable. Plainly, some documents were done after the loan contract was entered into. Mr Hulbert acknowledges that matter. Some documents were prepared by staff of Channic. Some documents were regarded as simply a "clerical exercise". In some cases, the inconsistent dates on the documents are explained as simply incorrect or the subject of errors or mistakes by someone. As to the matter of the Veda credit reports, the CBPL files and the letters from Mr Humphreys to Channic, the files or the documents on the files must necessarily be of little value if steps were taken as Mr Hulbert contends. I am satisfied that, in fact, the CBPL files provide an indication of the things Mr Humphreys did or did not do in his role at CBPL. Mr Hulbert is confused about this matter of the Veda credit reports as it is much more likely than not that Mr Hulbert, for Channic, asked Mr Humphreys to obtain the Veda credit reports on the basis that it would be a Channic document to be obtained for Channic by Mr Humphreys at Channic's expense. Plainly, Channic paid for the reports. That is why the Veda credit reports are not on the CBPL files. 1803 The real underlying point is this. 1804 Channic obtained documents from CBPL. Based on those documents, Channic used them to fill out other documents it needed to complete in purported discharge of its obligations under the NCCP Act. Mr Hulbert knew how Mr Humphreys went about obtaining the completion of the Credit Application Form and the Preliminary Test. Mr Hulbert also knew (because he set the terms) that Mr Humphreys was remunerated by only commission payments (both as to the sale of the motor vehicle through Supercheap and as to the entitlement to a commission upon a consumer entering into a credit contract with Channic) and he knew that a positive surplus on the Preliminary Test was, at least, a significant criterion for a consumer to obtain credit from, and a credit contract with, Channic. As mentioned earlier, the incentives within CBPL were operating against the discharge of reasonable inquiries about the consumer's financial situation and reasonable steps in verification of their financial situation and reasonable inquiries into the requirements and objectives of the consumer. In the context of these circumstances, Channic simply relied upon the CBPL material. Channic needed, as a matter of statutory obligation, to bring its own inquiring mind to the relevant statutory matters, first, because it had a duty to do so under the NCCP Act and second, because Mr Hulbert needed to ensure that each contract was not unsuitable for the consumer having regard to the potentially distorting remuneration incentives operating within CBPL. 1805 Each of the Channic files for the relevant consumers (apart from Ms Brim) contain three forms which seem to derive from the policy manuals approved by Channic on 14 November 2010 (to which the forms are an attachment). Mr Hulbert at one point in his evidence suggested that these forms may have been used before 14 November 2010 although he generally thought not. The three forms are the Loan Inquiry Checklist, the Verification Checklist and the Suitability Assessment Form. Schedule 1 to these reasons contains a copy of each of those three forms drawn from the Channic file for Ms Mudu and Mr Elliott. These forms are emblematic of the forms used for each of the relevant consumers (apart from Ms Brim as the Channic file does not contain the documents). As can be seen from Schedule 1, the Loan Inquiry Checklist contains a list of inquiries that might be made of a consumer. There are 12 nominated inquiries and cross-referenced to those topics are the methods of how the inquiry might be made. There are five methods and they are: the loan application form, personal interview, supporting documents from customer, contacting other people and searches. As to identifying the customer's requirements and objectives, five topics are identified. As to the Verification Checklist, the form nominates 26 sources of verification and those sources are cross-referenced to "What was verified from this source?" The things that might be verified from the various sources are these: personal details, employment and other income sources, other loans and payouts, income and expenses, credit history, assets and liabilities, personal circumstances, foreseeable changes and other factors. The form also contains a column for noting the date that verification took place and any particular details arising out of the verification process. The Credit Suitability Assessment is said to be the assessment made in accordance with ss 128 and 129 of the NCCP Act. Apart from the details of the customer, the form recites the date when the assessment was made and cross-references the assessment to the Loan Inquiry Checklist and the Verification Checklist. The form recites the amount of credit, the timeframe, the purpose for which credit is sought, loan term, interest rate and security. In each case, the form recites the available income of the consumer. 1806 The great difficulty with these forms in each case is that the evidence of all of the relevant consumers, including a number of the consumers called to give evidence by Channic, is that Channic did not undertake any inquiries of each of the consumers about the requirements or the objectives of the borrowers in entering into the credit contract. Mr Hulbert gave evidence that he knew the requirements and objectives of the borrowers because he knew that they wanted to purchase a motor vehicle and in order to do so they needed to obtain finance. Channic was providing that finance for that purpose in order to satisfy the consumer's requirement for a motor vehicle. However, it was not until the moment in time when Mr Hulbert conducted his interview with each consumer so as to explain the loan contract and secure its execution that any of the consumers were provided with information about the amount of credit which was actually being provided under the relevant contract, the interest rate, the total amount of interest payable, the total number of weekly or fortnightly payments, the amount of those payments, the total repayments under the credit contract, the fees and charges and (apart from Ms Raymond) the amount of brokerage which was, first, payable to CBPL and, second, brought within the credit contract as an amount to be financed by credit. I accept that since all of these factors were not ventilated with each consumer until the day on which Mr Hulbert walked to the desk and sat down with the consumer and took the consumer through the contract (notwithstanding the controversy over how long or how comprehensive it might have been), Channic could not possibly have conducted reasonable inquiries into the requirements and objectives of the consumer in relation to the particular credit contract and the various elements of its terms and the obligations each consumer would assume under it. 1807 ASIC relies upon a table which illustrates the dilemma about Channic undertaking an assessment of the suitability (or otherwise) of the credit contract before the day on which it actually explained to the consumer the elements of the particular credit contract with that consumer. That exercise was not done to determine the requirements and objectives of the consumer but simply to "tell" the consumer what was in the contract, on the day. In every case, the assessment was made before the requirements and objectives of the consumer was determined concerning the particular credit contract in question. The relevant information by reference to the credit contract and the Credit Suitability Assessment form is this: Consumer/Borrower Date of the Credit Suitability Assessment Date of the Credit Contract Ms Kingsburra 6 July 2010 13 July 2010 Ms Prunella Harris 10 August 2010 20 September 2010 Mr Gordon and Ms Stanley 24 September 2010 29 September 2010 Ms Brim N/A 22 September 2010 Ms Smith 6 April 2011 15 April 2011 The Nobles 2 March 2011 2 March 2011 Ms Dabah and Ms Harris 9 July 2010 16 July 2010 Ms Mudu and Mr Elliott 30 September 2010 14 December 2010 The Yeatmans 2 September 2010 16 September 2010 Ms Raymond 25 June 2012 25 June 2012 1808 As already mentioned, the extent of the inquiries made by Channic was simply to consider and note the contents of the material sent to Channic by Mr Humphreys attached to the application letter. Mr Hulbert gave evidence that he spoke to some of the consumers. However, the Credit Suitability Assessment form does not reflect any personal interviews. 1809 As already discussed, Channic did not have a copy of bank statements for the relevant consumers apart from three borrowers. As to the Veda credit report, it is not entirely clear from the evidence what reliance was placed by Channic upon the document. The "credit history" of the borrower is said to be the source of one inquiry in relation to the consumer's financial situation. Mr Hulbert took the view that a consumer's bad credit history was not necessarily an indication of their future compliance with their financial obligations under the contract. He said that the consumer's circumstances might well have changed. ASIC contends that a question properly arises about the weight which might have been attributed to the Veda credit reports by Channic having regard to the circumstances in relation to Ms Toohey. Mr Wayne McKenzie agreed that Ms Toohey had a very bad credit history and a very bad credit report. He also agreed that a prudent lender would not be making a loan to Ms Toohey. Channic made a loan to Ms Toohey notwithstanding the transparently obvious extremely bad credit history evident from the report. Nevertheless, the Channic documents suggest that Mr Hulbert had regard to the Veda credit reports. Having regard to the history of defaults by a number of the borrowers under the loan contracts, it may well be that Mr Hulbert's view that a bad credit history or a previously demonstrated difficulty in being able to comply with financial obligations is not an indication of a likelihood of being unable to comply with financial obligations under the contract, was not sound. 1810 Each of the Credit Suitability Assessment forms recites the "available income" of the consumer in terms of the gross income receipts available to the consumer rather than the income out of which the consumer might be able to find sufficient money to pay the weekly or fortnightly repayments. To the extent that income was to be recited, on the assessment form as a material matter (unsurprisingly), the relevant income would either be the amount of the benefits (or other income) less the existing recurrent expenses of the borrower determined according to proper inquiries about the financial situation of the consumer, or the top line income together with a statement of the consumer's known recurrent expenses. There seems little utility or purpose in reciting the income without any reference to the expenses. Sections 128, 129, 130, 131 and 133 of the NCCP Act 1811 Section 128 casts a prohibition upon, relevantly, Channic, entering into a credit contract with a consumer (to be the debtor) on the credit day unless Channic, within 90 days before the credit day, has made an assessment that accords with s 129, covers the period in which the credit day occurs and Channic has made the inquiries and verification that accords with s 130. The reference to "within 90 days before the credit day" [emphasis added] suggests a period before the very day the credit provider enters into the contract with the consumer (thus excluding the credit day itself). The objective of this beneficial legislation is to ensure that within a reasonable time (the statutory time) before the credit day, the credit provider has undertaken the reasonable inquiries and reasonable verification steps required by s 130 and made the assessment required by s 128(c) and s 129(b), rather than making the assessment at the last minute on the credit day itself. That purpose is consistent with s 36 of the Acts Interpretation Act 1901 (Cth) as earlier mentioned. Section 129 requires the assessment to specify the period the assessment covers and "assess" whether the contract will be unsuitable for the consumer if entered. ASIC asserts a contravention by Channic in respect of each of the relevant consumers. The contravention is admitted concerning Ms Kingsburra, Ms Dabah and Ms Estelle Harris, and Ms Raymond but otherwise denied in relation to the other consumers. The contended contraventions of s 128 are these. As to Ms Brim, ASIC says that Channic did not complete a credit suitability assessment at all. The Channic files do not contain an assessment. I accept that Channic contravened s 128 concerning Ms Brim. As to Ms Raymond, she entered into a further credit contract and as to that contract, no credit suitability assessment was made. The respondents admit a failure to comply with s 129 and thus a contravention of s 128. As to the other consumers upon which ASIC relies, ASIC contends that Channic failed to make the reasonable inquiries required by s 130(1)(a) and (b) and failed to take the reasonable verification steps required by s 130(1)(c). Thus, Channic is said to have failed to comply with s 128(d) and therefore falls within the prohibition in s 128(a). This contravention is admitted in respect of Ms Kingsburra, Ms Dabah and Ms Estelle Harris, and Ms Raymond. The contended contravention is denied in respect of the remaining relevant consumers. However, the respondents separately deny a failure to comply with s 130 in respect of Ms Kingsburra and Ms Dabah and Ms Estelle Harris. I proceed on the footing that the respondents intended to deny a contravention of s 128(a) said to be made good by ASIC by reason of non-compliance with s 130 (having regard to s 128(d)). 1812 However, for all the reasons previously mentioned, I am satisfied that Channic did not make reasonable inquiries to determine each consumer's requirements and objectives in relation to the credit contract because the only relevant inquiries concern someone at Channic looking at the CBPL referred documents and "filling out" the Schedule 1 Loan Inquiry Checklist as a process or clerical matter and then "telling" the consumer on the credit day the elements of the loan contract rather than interrogating the consumer about the consumer's requirements and objectives for that particular contract. 1813 I am also satisfied that Channic failed to make reasonable inquiries about the financial situation of the consumer or take reasonable steps to verify the financial situation of the consumer. Mr Hulbert relied upon the CBPL material sent to him by Mr Humphreys. The state of Channic's inquiries and verification steps could rise no higher than the flawed character and quality of the material assembled by Mr Humphreys with all its limitations as earlier discussed because Mr Hulbert did not go beyond it and he knew its limitations. Secondly, Channic did not make its own inquiries and did not bring an independent "credit providers" mind to the statutory tasks. 1814 Section 131(1) casts an obligation on, relevantly, Channic to assess the credit contract as unsuitable for the consumer, in the circumstances of s 131(2). The integers of s 131(2) reflect the same statutory integers as set out in s 118(2). The temporal element in s 131(2) is described as "the time of the preliminary assessment" and the question is whether at that time it is likely that the factors recited at s 131(2)(a) or (b), subsist. ASIC contends that each of the credit contracts were unsuitable for the purposes of s 131(1) having regard to s 131(2). All of the considerations that rendered the credit contracts unsuitable for the purpose of the analysis of the s 118(2) factors apply in determining whether the credit contract referable to each individual consumer was unsuitable for that consumer for the purposes of s 131(1) and s 131(2). 1815 ASIC contends that apart from the relevance of the evidential matters earlier discussed concerning the credit contract proposed by CBPL for each consumer (apart from Ms Raymond so far as CBPL is concerned), the additional consideration relevant here is that the credit to be provided to each consumer would include (when they came to be told about it) a borrowing to pay CBPL a brokerage fee. None of the consumers knew or understood from their dealings with Mr Humphreys that they would be seeking to obtain credit to pay CBPL a brokerage fee. They did not know or understand that they had, apparently, entered into a contract (which must have been an oral contract if it subsists because there is no written instrument anywhere) to acquire loan broking services from CBPL through the activities of Mr Humphreys in consideration of the payment of a brokerage fee to CBPL. The consumers gave evidence that they did not know of CBPL or that they would be paying CBPL a brokerage fee. Mr Hulbert says he told each consumer that a fee was payable to CBPL and that the credit advanced to the consumer under the credit contract included monies to pay CBPL a brokerage fee. It seems to me to be likely, on the balance of probabilities, that Mr Hulbert did draw the payment of a brokerage fee to CBPL to the attention of each of the relevant consumers as he went through the loan contract document according to his usual spiel. However, I am satisfied that that was the first time each consumer heard about a brokerage fee or that such a fee was payable to somebody called Cash Brokers Pty Ltd or the amount of the fee or that they would be borrowing money from Channic to pay CBPL that fee. Nor is there any suggestion that CBPL actually "brokered" anything for the consumer in the sense of testing a portfolio of lenders to determine the "best deal" for the particular consumer. That did not happen because it was never going to happen because the consumer's so-called "broker", CBPL, was only ever going to refer the application to the company from which Mr Humphreys would obtain a finance commission as part of his commission only remuneration in addition to the commission he would obtain from Mr Hulbert's Supercheap company for selling the car. There can be no doubt that Mr Hulbert knew and understood in full measure that all of this was the fact. I am also satisfied that because all of these matters concerning brokerage were "news" to each consumer when Mr Hulbert went through his spiel at the signing meeting, the consumers did not "take the matter in" and were not familiar with it as something they had done or incurred, until it was later drawn to their attention by ASIC or otherwise. 1816 I also accept that a "requirement" to fund, through the vehicle of the credit contract with Channic, the payment of a brokerage fee for services supposedly rendered by CBPL to each consumer, was something falling within Channic's obligation to make "inquiries about the consumer's requirements and objectives in relation to the credit contract". Was it a requirement or objective of each consumer that the credit contract fund the payment of a brokerage fee to CBPL? None of this became apparent until the credit day itself, if it ever became truly apparent on that day. 1817 Section 133(1) casts a prohibition upon a credit provider entering into a credit contract with a consumer (to be the debtor under the contract) if the contract is unsuitable under s 133(2). The contract is unsuitable for the consumer under s 133(2) if, at the time it is entered (or the credit limit is increased), it is likely that the consumer will be unable to comply with his or her financial obligations under the contract or only do so with substantial hardship (factor (a)) or the contract does not meet the consumer's requirements or objectives (factor (b)). ASIC contends that Channic contravened s 133(1) in respect of each of the relevant consumers. The difference between s 131(1) and s 131(2) on the one hand and s 133(1) and s 133(2) on the other hand, is the temporal element of the time of the assessment in the first case and the time of entry into the contract in the second case. Having regard to the evidence concerning the chronology of events as discussed in these reasons, the circumstances that rendered each credit contract unsuitable at the time of assessment remained the fact at the time of entry. I am satisfied that Channic contravened s 133(1). 1818 The next question is whether Mr Hulbert is a person "involved in a contravention" of a civil penalty provision of the NCCP Act. I now address that question. Mr Hulbert 1819 As indicated earlier, I am satisfied that CBPL has contravened ss 113, 114, 115, 116, 117, 118, 121 and 123 of the NCCP Act and that Channic has contravened ss 128, 130, 131 and 133 of that Act. Relevantly, for present purposes, all of those provisions are civil penalty provisions. Section 169 of the NCCP Act creates the statutory consequence that a person who is "involved in a contravention" of such a provision is "taken to have contravened" that provision. The NCCP Act adopts the very familiar definitional exhaustive formulation of the phrase "involved in" a contravention. A person is "involved" in a contravention for the purposes of the NCCP Act if, and only if (s 5), the person: (a) has aided, abetted, counselled or procured the contravention; or (b) has induced the contravention, whether by threats or promises or otherwise; or (c) has been in any way, by act or omission, directly or indirectly, knowingly concerned in or a party to the contravention; or (d) has conspired with others to effect the contravention. 1820 The central question, on the facts, is whether Mr Hulbert in any way, by his acts or omissions, directly or indirectly, was knowingly concerned in or party to the contraventions by CBPL and also Channic. Plainly enough, Mr Hulbert must be shown to have been "knowingly concerned" in the contraventions in the sense that he had knowledge of and an engagement in the conduct constituting the integers of the contraventions. It is not necessary that the relevant person knows and understands that his or her engagement in such conduct constitutes a contravention of the law. These principles are uncontroversial: Hamilton v Whitehead (1988) 166 CLR 121; (1989) 7 ACLC 34; Yorke v Lucas (1985) 158 CLR 661; Re Waterfront Investments Group Pty Ltd (in liq) (2015) 105 ACSR 280; [2015] NSWSC 18; Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 5) (2014) 98 ACSR 347. 1821 As they apply to Mr Hulbert, there can be no doubt having regard to the very extensive analysis of all the evidence that I have undertaken in these reasons, that Mr Hulbert was closely engaged in every facet of the conduct of CBPL and Channic. CBPL and Channic were no more than wafer thin transparent membranes between the consumer and Mr Hulbert. He knew and understood every aspect of the conduct of CBPL and Channic. He knew that Mr Humphreys was responsible for obtaining the Credit Application Form, flawed as it was, and that Mr Humphreys was preparing the Preliminary Test which failed to take into account the relevant expenses because they had not been properly identified. He knew that CBPL was not using the policy documents and attached forms, nor undertaking the proper and reasonable inquiries required by the legislation. He knew that bank statements were not being obtained, in the main. He also knew that Mr Humphreys was remunerated on a commission only basis and that the incentives under which Mr Humphreys operated worked against the discipline of undertaking all of the proper and reasonable inquiries and verification activities required under the Act. He knew that Mr Humphreys was operating on the footing that, at the very least, returning a positive surplus on the Preliminary Test was a significant criterion of whether a consumer was a worthy applicant for finance from Channic. Mr Hulbert set the prices of the vehicles, the deposits and the rate of brokerage. The same position, in terms of his engagement in conduct, prevails in relation to Channic. Mr Hulbert knew and understood that Channic was directing its analysis to those things supplied by CBPL and he knew and understood that Channic was not making further or wider inquiries or taking verification steps required by the NCCP Act. He knew and understood the limitations in the suitability assessment about income and he knew that each of the consumers did not know the financial elements of the loan contract until the very moment in time when he took them through the document. He also knew that the suitability assessments had all been done before the consumers understood the elements of the contract they would later be told about and thus he could not have known whether the consumer's contract met the requirements and objectives of the relevant consumer in all the circumstances of the consumer's actual position. He knew and understood that the consumers had not understood that they, theoretically, had engaged CBPL to provide brokerage services for a fee and he knew and understood that the consumers did not know, until the last minute, that they were seeking finance, in part at least, to pay CBPL for the provision of brokerage services. He also knew that the so-called provision of brokering services was a fiction because Mr Humphreys was not testing the market to obtain the "best deal" for the consumer but was only ever going to send an application for finance to Channic. Mr Hulbert knew that the application letters, in the main, did not enclose a bank statement. He also knew that the Loan Inquiry Checklist and the Verification Checklist were treated as clerical matters of form to be obtained and held on file in ostensible compliance with Channic's obligations under the NCCP Act. 1822 I am satisfied that there is no room for doubt that Mr Hulbert knew and understood and was engaged in, by acts and omissions, the contravening conduct of CBPL and Channic. Section 12CB of the ASIC Act 1823 The elements of the statutory framework are discussed at Part 1 of these reasons. ASIC contends that the circumstances in which the loan contracts were entered into between Channic and each of the consumers supports a finding that Channic engaged in unconscionable conduct in contravention of s 12CB of the ASIC Act. 1824 In determining whether Channic has engaged in unconscionable conduct for the purposes of the legislation, the Court should have regard to the beneficial nature of the legislation in the way in which it seeks to address, in a remedial sense, the consequences for a consumer of having been the subject of statutorily unconscionable conduct. In analysing the evidence of the relevant consumers, I have examined aspects of the domestic family circumstances of each consumer; the state of the consumer's education; their relationship with the Yarrabah Aboriginal community; the circumstances which caused them to acquire a motor vehicle from Supercheap; the imperative of their need for a motor vehicle; the income and financial circumstances applicable to each of them in seeking to make a purchase of a significant consumer item like a motor vehicle; their need to do so by means of credit; the state of their commercial understanding of the class of credit transaction into which they would enter; and the state of their sophistication both in the commercial sense but also their capacity to engage with commercial parties about a consumer credit transaction. 1825 I have also taken into account aspects of what Mr Southon had to say about the cultural circumstances of some of the consumers derived from the particular characteristics of the Yarrabah Aboriginal community. 1826 I have also taken into account my own impression of the witnesses and the way in which they gave their evidence. There are two features of that evidence relevant for present purposes. The first is that the Yarrabah Aboriginal witnesses tended to give initially quite short truncated statements and reflections on the events. They were not disposed to explain the narrative in any sequential way. It was necessary to take those witnesses, in the main, to a sequence of quite straightforward simple questions which enabled them to step through a chronological sequence of events. It seems to me likely that in their dealings with Mr Hulbert, in being taken through the loan contract that they were probably similarly focused upon getting to the end point. Mr Hulbert said that some of the witnesses, in his dealings with them, were not interested in what he was saying and, to a degree, did not care about what was in the loan contract. There may well have been elements of that in all the circumstances. However, it seems to me very likely that this impression Mr Hulbert had of them is consistent with their imperative to get to the end point without necessarily having the discipline of stepping through each of the elements of what was going on before them. The second feature of their evidence is that when propositions were put time and time again in cross-examination by Dr Spence, some of the witnesses became tired and exhausted and confused. Some of them wanted a break. Some of them were experiencing difficulty. Continued questioning about the same topics was likely to lead to a position where these witnesses began to adopt a disposition of being willing to agree to anything. As things transpired, their primary evidence in the affidavits and their primary evidence-in-chief, together with aspects of their evidence in cross-examination, set out their position. 1827 In reflecting upon particular aspects of the relationship between the consumers and Channic, I have regard to the matters set out at [39] of these reasons. However, I also take into account all of the observations I have made at Part 1 on the topic of the approach to the application of s 12CB and the statutory notion of unconscionable conduct. 1828 As to the particular circumstances, all of the 10 consumers relied upon by ASIC are Aboriginal Australians and eight of them are residents of the Yarrabah Aboriginal community. Ms Brim and Ms Raymond are not from Yarrabah. At Part 22 of these reasons, I address the evidence of Mr Southon concerning contextual matters of relevance about the evolution and development of the Yarrabah community. There can be no doubt that Yarrabah is a place of very considerable social disadvantage in Australia. Mr Southon has set out, and I have remarked upon, the features of his evidence about that matter. I accept that members of that community, over time, have not had the same opportunities to develop any working sophistication about financial transactions in relation to credit contracts. That is not to say that these consumers are unfamiliar with rental agreements, payday loan agreements and other commercial arrangements for the provision of credit in relation to domestic goods like white goods and furniture. Nevertheless, I accept that the Aboriginal consumers from Yarrabah were persons who were not able to understand arrangements which are said to have the character of a brokering transaction or a transaction by which CBPL would, in theory, be acting on their behalf as a broker to obtain finance for them in connection with their purchase of a motor vehicle. They were not able to understand those arrangements because they were not explained to them and they were, in any event, a fiction. Whatever the status of those brokerage arrangements, it is plain that the Yarrabah Aboriginal witnesses did not understand that they had theoretically contracted with CBPL to acquire credit assistance for a brokerage fee. I am satisfied that, in this respect, CBPL engaged in what might be described as "unfair tactics" as against the consumer because there was no transparent explanation of what was going on in that regard. More importantly for present purposes, Channic and Mr Hulbert knew that the consumers were not astute to what was actually happening with CBPL and in consequence, with Channic. That is, Mr Hulbert for Channic knew that the consumers did not understand that they were theoretically contracting with CBPL for the acquisition of brokering services in consideration of the payment of a brokerage fee. 1829 These considerations are simply an emblematic reflection of the lack of disclosure by CBPL but also an emblematic example of the lack of commercial experience or knowledge the Yarrabah consumers were able to bring to the relationship with Channic. Channic, through Mr Hulbert, knew that these consumers laboured under this considerable disadvantage. 1830 As to the loan transaction itself, the consumers did not know or understand the nature of the interest component to be paid on the credit provided to pay for the balance purchase price of the motor vehicle. Some of them thought that Supercheap was accepting payment over time. Some of them did not know at all that interest was payable. Others did not know that the rate was 48% or whether that rate was a "good rate" or not. Certainly, CBPL had not briefed each of the consumers on interest rates and whether 48% was a good rate and whether other finance providers might have been able to provide credit on more favourable terms. Channic knew that CBPL was not doing those things even though it was supposedly a broker for each consumer. 1831 As to the domestic circumstances of the consumers, it is plain from the review of all of the evidence that many of the consumers had endured quite difficult family circumstances. Many of the consumers were responsible for the care of many children. Some of the children suffered from significant physical and behavioural disabilities. Some of the consumers were looking after elderly relatives. Ms Brim and Ms Smith were pregnant and well into their final stages of pregnancy when they dealt with Supercheap and, more relevantly, when they entered into the credit contract with Channic. Many of the consumers found themselves in a position where they had to acquire a motor vehicle in order to meet the demands of their children and partners for a vehicle in the context of the totality of their domestic and working circumstances. Each of the consumers required a motor vehicle for these reasons. 1832 In the course of examining the evidence, I have made observations about the educational qualifications of the witnesses. It is fair to say that the consumers relied upon by ASIC were, in the main, of limited education. Ms Kingsburra, Ms Smith and Ms Raymond had all been educated beyond Year 10 level in High School. The remaining consumers had received education to Year 10 level or less. ASIC correctly observes that Mr Gordon received formal education to the age of 14. Ms Prunella Harris had obtained TAFE qualifications. One feature of the limitations in their educational experience is consistent with the earlier observations in relation to the willingness of some of the witnesses to agree quite quickly with particular propositions. In the course of the evidence, it became important from time to time to keep questions within the limits of straightforward simple sentences in order to enable the witnesses to comprehend the subject matter of the question and frame a responsive answer. One aspect of their financial unsophistication is probably related to limitations in the education obtained by many of the witnesses. Generally, it is fair to say that the consumers lacked financial literacy and it is true to say that many of them did not understand the effect of interest rates as a component in the formulation of a repayment obligation and did not understand, in particular, the effect of a 48% interest. That is, no doubt, in part due to the limitations in the educational standard of the consumer witnesses. 1833 Probably the most overriding consideration going to the nature of the relationship between Channic and the borrowers is the impact of the financial circumstances confronting each of the borrowers and the imperatives they faced in terms of sources of income available to them and the scope of their expenses. Many of these consumers came to Supercheap as, in effect, a place of last resort for the purchase of a motor vehicle. That is not to say that they went to Supercheap because they had been habitually rejected from other purchase transactions at other car yards but rather because the consumers perceived that Supercheap was a place where persons in difficult financial circumstances would be able to purchase a motor vehicle through some kind of purchase arrangement. They had no idea of whether (and were not told about whether), Supercheap would vendor finance the purchase of a car by accepting instalment payments over time or whether there was some kind of related financial "tie-up" by which Supercheap would be able to place a consumer into a purchase arrangement, or otherwise. They knew that they would have to apply for finance. The consumers had no idea of who Channic was (or might be) and no idea of any relationship between Channic and commission payments by Channic to Mr Humphreys. 1834 Apart from these considerations, seven of the consumers were entirely dependent upon Centrelink benefits as the only source of their income at the time they entered into the credit contracts with Channic: Ms Kingsburra, Mr Gordon, Ms Brim, Ms Smith, Mrs Noble, Ms Dabah and Ms Mudu. The Yeatmans, Ms Harris and Ms Raymond were employed on a part-time basis and were also the recipients of Centrelink payments. 1835 There can be no doubt that each of the consumers were in very difficult circumstances financially. They depended entirely upon their Centrelink benefits to keep their family going and they expended their benefit receipts virtually immediately they were obtained. There is no evidence that these consumers were able to accumulate or otherwise save funds in a way (or at all) which suggested a reserve financial capacity to take on the proposed loan repayments under the proposed loan contracts. As explained earlier, an examination of the bank statements shows that the balances were very quickly reduced to small amounts (for example between $3.00 and $8.00) virtually immediately upon the receipt of the Centrelink benefits. Often, the accounts were reduced to an overdrawn balance which then attracted overdrawing fees as well. 1836 In these financial circumstances, Supercheap represented, in essence, the only car yard that was able to enable these consumers to purchase a motor vehicle coupled with finance to do so. Some of the consumers were just very pleased to be able to acquire a motor vehicle because they thought they would not be able to do so. The credit contracts were the mechanism by which they were able to acquire a motor vehicle, irrespective of the terms. I am satisfied that all of these considerations taken together made it plain to Channic that these consumers were in a significantly disadvantaged position as compared with Channic when they came to the question of entering into the credit contract. 1837 For Channic, Mr Hulbert must have been aware that these consumers were in difficult circumstances. They must have presented to Mr Hulbert as persons who had travelled to Cairns from the Yarrabah community (in respect of eight of the consumers) and it must have been obvious to Mr Hulbert that Yarrabah was a community of very considerable disadvantage. These consumers must have presented to Mr Hulbert, as they did before the Court, as persons of limited educational experience and commercially unsophisticated people entering into credit contracts based upon income flows almost entirely related to Centrelink benefits. Mr Hulbert was very familiar with the terms and conditions of the credit contract. He gave each consumer an explanation of it, according to the spiel he adopted. It must have been obvious to him that having regard to the educational qualifications of the consumers, their background, their financial circumstances and their lack of commercial experience, that they would not have comprehended the content, in a meaningful way, of the loan contracts. 1838 As to the vehicles, Mr Hulbert accepted that some of the motor vehicles might have been sold at a price above market value although he did not accept any broader proposition that the vehicles the subject of each of the loan contracts were generally sold by Supercheap at a price above market value. Nevertheless, the evidence of Mr Vasilakis is that the motor vehicles were valued, at the date of sale, at prices below the prices at which they were sold. ASIC contends that a relevant further consideration is that the cost of acquiring and re-conditioning each motor vehicle was also well below the sale price to each consumer. This matter is admitted by the respondents in the pleading. ASIC sets out in a table the variances between the purchase price of the vehicle, the cost of the vehicle and the value of the vehicle. I accept that Annexure B properly reflects those variances subject to the following matter. 1839 In the course of the evidence given by Mr Vasilakis, he said that the price of the motor vehicle determined by reference to the Guide and the Red Book gave him an indication of the market value of the vehicle assuming certain things about the vehicle. The price reflecting the market value, is a price which, he said, includes the GST component. I infer from his evidence that in determining a price according to the Guide and the Red Book and other comparative sales, the value is determined including the GST but excluding items such as registration fees and stamp duty on the sale. Accordingly, I have adjusted the sale price of each vehicle sold to each consumer to reflect a price for the sale of the vehicle including GST but excluding registration fees, stamp duty and the purchase of any extended warranty: [1589]. It is not necessary to set out the content of that table in these reasons. The table reveals that the sale price of the vehicle to the relevant consumer was significantly greater than the cost of the vehicle to Supercheap. The sale price to the consumer was also significantly greater than the value of the vehicle according to the oral evidence of Mr Vasilakis. 1840 Set out as Schedule 2 to these reasons is a table which identifies these things: the consumer; the vehicle; the sale price; the cost of the vehicle to Supercheap; the sale price less cost; the minimum and maximum value of each vehicle according to the oral evidence of Mr Vasilakis; and the sale price less the value of each vehicle (with defects) according to the oral evidence of Mr Vasilakis. Column 5 of Schedule 2 sets out the sale price less the cost to Supercheap. Columns 8 and 9 set out the margin between the sale price and the best evidence of value based on the evidence of Mr Vasilakis. The margin between the sale price and Supercheap's cost in each case is significant (even having regard to the adjusted sale price). The margin between the sale price and the best evidence of value is less pronounced but also significant. 1841 A material matter in relation to the question of whether Channic engaged in unconscionable conduct for the purposes of the statute is the circumstances in which the consumers came to understand elements of the loan contract and then sign the loan contract. This goes to the debate about the things which occurred when Mr Hulbert sat down with each consumer at the desk with copies of the contract. The consumers say, by and large, that they were not given an opportunity to read the contract before signing it and that Mr Hulbert did not explain the contract to them other than to turn the pages and quickly point out some things against the background of some statements which were quite often described by the witnesses as "blah blah blah". 1842 Plainly, the consumer witnesses relied upon by ASIC did not comprehend the content or burden of the document. However, I am satisfied that having regard to Mr Wayne McKenzie's evidence and the evidence of Ms Bataillard (although the evidence in each case suffers from some difficulties as described in the earlier parts), that Mr Hulbert had a process and a method in describing the loan contract and it is likely that he deployed that method and process, in some form or other, with each of the relevant consumers. However, it is clear from the evidence of the consumers, which I accept, that they did not understand what was being said to them about the various matters the subject of Mr Hulbert's spiel. I accept the evidence of the relevant consumers that Mr Hulbert took these consumers through the document quite quickly as he took them to each of the pages they were required to initial and the places where they were required to sign. I do not accept, in the light of the evidence of the relevant consumers, that Mr Hulbert took each of the consumers through the document in the expansive way he suggested in evidence. In that regard, he is probably confused about circumstances he recalled with some classes or cohorts of consumers on the one hand, and the circumstances which prevailed in respect of each of the individual relevant consumers in these proceedings, on the other hand. 1843 It should be remembered that Mr Hulbert has no actual recollection of the detail of his engagement with each of these relevant consumers. The earlier review of the evidence of each of the consumers shows that they did not understand or know about the brokerage. They did not understand the total amount of credit being borrowed and the total interest charge (or in some cases, that interest was being charged). They did not understand the total amount of the repayments they would be required to make under the loan contract. They had no understanding of an entity called Channic Pty Ltd. They also said that they were not asked about whether they wished to seek legal advice. They also said that if they had understood the total amount of repayments they would be required to make under the loan contract they would not have purchased the motor vehicle. In many respects, the vehicles exhibited a range of defects. They are described in the evidence of the relevant consumers and I have noted their evidence about those matters in each of the earlier Parts. 1844 Having regard to: Channic's understanding of the circumstances of the presentation of each of the relevant consumers to Supercheap and CBPL (other than Ms Raymond) with the resultant loan application being made to Channic on the footing that a brokerage fee would be charged in circumstances where none of the consumers understood that they were engaging CBPL as a broker; the personal, domestic and educational circumstances of each of the relevant consumers; the credit sought under the credit contract (which included the brokerage fee); the high dollar value of the interest payable on the credit amount; the obligation to make significant repayments; in particular, the financial circumstances of each of the relevant borrowers; the disproportionate level of skill and experience as between each consumer and Channic; and the circumstance that the consumer's vehicle was susceptible of repossession as part of the security arrangements for the loan in circumstances where it was likely that the consumer would fall into default, Channic's entry into each consumer contract with the corresponding assumption by each of the consumers of the burden of the consumer contract, was the expression of unconscionable conduct in contravention of s 12CB, in all the circumstances. Section 76 of the National Credit Code, Schedule 1 to the NCCP Act 1845 ASIC contends that each of the loans entered into between Channic and the 10 relevant consumers were "unjust" within the meaning of s 76 of the National Credit Code. That section provides that the Court may if satisfied that in the circumstances relating to the relevant credit contract at the time it was entered into, the credit contract was unjust, re-open the transaction that gave rise to the credit contract. Section 76(2) provides that in determining whether a term of a particular credit contract is unjust, in the circumstances relating to it at the time it was entered into, the Court is to have regard to the "public interest" and to "all the circumstances of the case" and may have regard to 16 identified factors. Those factors, relevantly, put simply, are these: (a) the consequences of compliance, or non-compliance, with all or any of the provisions of the contract; (b) the relative bargaining power of the parties; (c) whether or not, at the time the contract was entered into …, its provisions were the subject of negotiation; (d) whether or not it was reasonably practicable for the applicant to negotiate for the alteration of, or to reject, any of the provisions of the contract; (e) whether or not any of the provisions of the contract … impose conditions that are unreasonably difficult to comply with, or not reasonably necessary for the protection of the legitimate interests of [Channic]; (f) … (g) the form of the contract and the intelligibility of the language in which it is expressed; (h) whether or not, and if so when, independent legal or other expert advice was obtained by the debtor [consumer]; (i) the extent to which the provisions of the contract … and their legal and practical effect were accurately explained to the debtor [consumer] and whether or not the debtor understood those provisions and their effect; (j) whether the credit provider or any other person exerted or used unfair pressure, undue influence or unfair tactics on the debtor, … and, if so, the nature and extent of that unfair pressure, undue influence or unfair tactics; (k) whether the credit provider took measures to ensure that the debtor understood the nature and implications of the transaction and, if so, the adequacy of those measures; (l) whether at the time the contract was entered into, the credit provider knew or could have ascertained by reasonably inquiry at the time, that the debtor could not pay in accordance with its terms or not without substantial hardship; (m) whether the terms of the transaction or the conduct of the credit provider is justified in the light of the risks undertaken by the credit provider; (n) … (o) … (p) any other relevant factor. 1846 In the course of these reasons, I have set out the relativities in the relationship between CBPL and each consumer, Channic and each consumer and Channic and CBPL in their dealings with each consumer. I have already indicated the disequilibrium in the bargaining power of Channic and each of the consumers and the circumstance that Mr Hulbert knew that CBPL was charging each consumer a brokerage fee and that each consumer did not know that they had theoretically engaged CBPL in a brokerage contract attracting that fee. I have already observed that CBPL did not make the required inquiries or take the required verification steps and thus it did not assemble accurate data about the expenses of each consumer. I have already found that Mr Hulbert knew of the inadequacy in that material and that Mr Humphreys was proceeding on the basis that a significant criterion of the worthiness of a consumer for a loan from Channic was a positive surplus on the Preliminary Test. I have also already observed that the domestic, cultural, family, educational and financial circumstances of the Yarrabah consumers rendered them more susceptible than others to entering into a credit contract without a proper understanding of its terms. They also had a pressing need for a motor vehicle. None of the provisions of the credit contract were the subject of negotiation. The terms were delivered to each of the consumers at the moment in time when Mr Hulbert undertook the signing process. It was not reasonably practicable for any of the consumers to reject any of the provisions of the credit contract. Channic has not put on any evidence, other than the oral opinion of Mr Hulbert, that the terms and conditions of the credit contract were necessary for the protection of Channic's legitimate interests. I am not satisfied that that is so, on the evidence. Moreover, Channic knew that CBPL was not protecting the interests of the consumer as it was failing to comply with obligations under the NCCP Act and, although it was theoretically a broker for the consumer, it was not undertaking any activities consistent with seeking out "the best deal" possible for the consumer. The brokering arrangement was a fiction and Channic knew it to be so. The practical effect of the credit contract was that the consumer assumed significant financial obligations. Those obligations could not be discharged (as already discussed). The consumers fell into default, were subject to dishonour charges and processes of execution. In a number of cases the motor vehicles were re-possessed and sold at auction. It is true that in some cases Channic wrote off the residual debt. The need to do so speaks to the unjustness of the contracts. I am satisfied that the consumers did not understand the lengthy and complex credit contract. I am satisfied that notwithstanding Mr Hulbert's spiel, they did not understand its terms. I am satisfied that the credit contract brought about hardship in its operation. I am satisfied that each contract was unjust in terms of s 76 of the National Credit Code. 1847 I propose to consider further the question of the relief to be granted arising out of the conclusion that each consumer credit contract was unjust. Final conclusions and the qualification in relation to Mr Gordon and Ms Raymond 1848 It follows (subject to the observations below), that I have found that CBPL has contravened ss 113, 114, 115, 116, 117, 118, 121 and 123 of the NCCP Act. I have found that Channic has contravened ss 128, 130, 131 and 133 of that Act. I have found that Mr Hulbert is a person who has been knowingly concerned in each of those contraventions. I have found that Channic engaged in unconscionable conduct in breach of s 12CB of the ASIC Act. I have found that each credit contract was unjust at the time it was entered into, in terms of s 76 of the National Credit Code. 1849 The qualification upon the findings of contraventions as just described concerns the question of whether findings are to be made of contraventions in respect of the matters relating to Mr Gordon and Ms Raymond, which go beyond the admissions (Part 5) made by the respondents. Having reviewed all of the evidence, I am satisfied that the proper course in relation to each of these consumers is this. The primary evidence, given by affidavit, on the face of that material, affirms facts which suggest contraventions. However, the respondents were not able to test the evidence of either consumer in respect of matters going to the matters which were denied. I am not satisfied that findings of contraventions ought to be made in reliance upon that material in circumstances where the respondents were not able to test the evidence by cross-examination and seek to demonstrate that the applicant had failed to make good the contended contraventions which were denied. None of this is relevant, of course, in relation to the matters which were admitted. Accordingly, contraventions will be found, so far as the conduct concerns dealings in relation to Mr Gordon and Ms Raymond, confined to the admissions. 1850 As to the making of declarations and other formal orders, I will direct the applicant to submit declarations and orders in final form for further consideration within 14 days. The costs of the proceedings will be reserved for later determination. Submissions will be called for in relation to costs within 21 days. The question of the determination of a pecuniary penalty in respect of the various contraventions is to be dealt with as a separate question. To the extent that I have not addressed any of the objections of the parties to evidence, I have treated the evidence the subject of those objections as admitted for the purpose of the proceedings. I certify that the preceding one thousand eight hundred and fifty (1850) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 30 September 2016 SCHEDULE 1 SCHEDULE 2 Consumer Vehicle Sale Price Cost of Vehicle to Supercheap Sale Price Less Cost Oral Evidence: Sale Price less Oral Evidence (With Defects) Question 2 Min Max Min Max Yeatmans 1 $9,610.50 $4,454.04 $5,156.46 $7,000 $7,000 $2,610.50 $2,610.50 Dabah and Harris 2 $6,712.00 $2,592.84 $4,119.16 $4,199 $5,199 $2,513.00 $1,513.00 Harris 3 $8,645.50 $2,630.00 $6,015.50 $5,900 $5,900 $2,745.50 $2,745.50 Brim 4 $8,689.00 $5,662.34 $3,026.66 $4,900 $5,000 $3,789.00 $3,689.00 Kingsburra 5 $8,689.00 $1,591.00 $7,098.00 $3,900 $4,999 $4,789.00 $3,690.00 Gordon and Stanley 6 $3,833.00 $836.33 $2,996.67 $2,436 $3,166 $1,397.00 $667.00 Mudu and Elliot 7 $7,680.50 $2,030.73 $5,649.77 $4,000 $5,000 $3,680.50 $2,680.50 Smith 8 $10,579.00 $3,400.00 $7,179.00 $6,000 $6,000 $4,579.00 $4,579.00 Nobles 9 $9,610.50 $3,588.50 $6,022.00 $6,300 $6,300 $3,310.50 $3,310.50 Raymond 10 $5,768.00 $3,204.78 $2,563.22 $3,300.00 $4,166.00 $2,468.00 $1,602.00 SCHEDULE OF PARTIES QUD 536 of 2013 Respondents Second Respondent: CASH BROKERS PTY LTD (ACN 144 652 951) Third Respondent: COLIN WILLIAM HULBERT