BROOKES v ANZ BANKING GROUP LIMITED [1996] NSWCA 69

BROOKES v ANZ BANKING GROUP LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 11 March 1996

[1996] NSWCA 69

Cole JA. Before me is an application by way of notice of motion brought by Mr and Mrs Brookes.

The application is an unusual one. It seeks that certain documents being diary notes of the ANZ Banking Group be retained in the registry until further order, subject to leave being granted to Mr McCormack and Detective McCann of the New South Wales Police to uplift exhibit No.AA for the purpose of submitting those documents to forensic examination.

The document in question is a bank diary note. Exhibit No.AA comprises some almost 70 pages of such records. The page in question which the claimant seeks to have examined is page 5, it being the only photocopy page among these documents.

The matter arises in this way, and I shall state the facts briefly: there were four persons having an interest in a company, Mr and Mrs Brookes and Mr and Mrs Marshall. For finance purposes arrangements were made with the ANZ Banking Group. In the resultguarantees were given by those four persons, and the guarantee was supported by a mortgage over the home of Mr and Mrs Brookes.

The contention, as I understand it, of Mr and Mrs Brookes was — and I am told they gave evidence to this effect — that the bank manager represented to them that all four persons were equally liable on those guarantees and an explanation to that effect was given to them. They contend that such an explanation was diaried. They contend that at about the same time Mr and Mrs Marshall attended upon the bank.

Mr and Mrs Marshall contended in evidence that they were told they would be called upon under the guarantees only after the Brookes" house had been sold.

The question arises as to whether there was a diary entry which might support that account of Mr and Mrs Marshall. There is a diary entry of 9 August, 1988 which touches on the matter.