Bendigo and Adelaide Bank Limited v Stamatis [2015] NSWSC 721

Supreme Court New South Wales

Medium Neutral Citation: Bendigo and Adelaide Bank Limited v Stamatis [2015] NSWSC 721 Hearing dates: 7 November 2014 Date of orders: 12 June 2015 Decision date: 12 June 2015 Before: R S Hulme AJ Decision: 1. Publish reasons.

2. Matter adjourned until 18 June 2015. Catchwords: Practice – Civil Procedure Act s 99 – costs against solicitors – undue duplication and irrelevance Legislation Cited: Civil Procedure Act 2005 (NSW) Consumer Credit Code (Cth) Contracts Review Act 1980 (NSW) Evidence Act 1995 (NSW) (NSW) Strata Schemes Management Act 1996 (NSW) Cases Cited: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300 National Australia Bank v Rusu (1999) 47 NSWLR 309 Ridehagh v Horsefield [1994] Ch 205 Trysams Pty Limited v Club Constructions (NSW) Pty Ltd [2008] NSWSC 399 Category: Costs Parties: Bendigo and Adelaide Bank Limited CAN 068 049 178 (Plaintiff) Aristides Stamatis (First Defendant) Maria Stamatis (Second Defendant) Representation: Counsel: R Bellamy (Plaintiff) J K Taylor (First and Second Defendants)

Solicitors: Gadens Lawyers (Plaintiff) Hughes & Taylor (First and Second Defendants) File Number(s): 2011/156419

Judgment 1. By Statement of Claim filed on 12 May 2011 the Plaintiff sought against the Defendants orders, inter alia, for possession of land and that the Defendants pay the Plaintiff the sum of $423,062.31. 2. The proceedings were defended. They came before me for hearing on 24-28 March 2014. 3. On 16 September 2014 I published reasons for the conclusion at which I had arrived. Although by agreement between the parties the final orders took a different form, the substance of my conclusion was that, subject to the Defendants paying the Plaintiff $6,909.00, the mortgage and loan agreement on which the Plaintiff relied should be set aside. 4. At the time of publishing my reasons I expressed disquiet at the extent and, in some respects, the nature of the evidence which had been put before me and foreshadowed the possibility that orders for costs should be made against some of the lawyers involved in the case. 5. The matter was stood over. On 30 September 2014 I made final orders as between the Plaintiff and the Defendants and directed the parties to provide to my associate and serve any evidence upon which they intended to rely bearing on: 1. the relevance of the documents attached to or exhibited to the affidavits filed in the proceedings; 2. any unnecessary inclusion or duplication of documents in the affidavits filed or in the Court Book; and 3. prolixity in, or undue length of, affidavits filed in the proceedings. 1. On 7 November 2014 affidavits were read and submissions made on the issue of costs. Supplementary submissions were later provided on behalf of Gadens, the solicitors for the Plaintiff. These reasons are concerned with whether, and if so what, orders should be made against one or more of the solicitors for the parties. 2. While it is not necessary in these reasons to canvas at length the matters dealt with in my principal reasons, some reference to the issues between the Plaintiff and Defendants is necessary. The Plaintiff alleged that the Defendants had made three applications to borrow money from the Plaintiff, that in support they had signed numerous other documents including a mortgage over their home, that in reliance on these various documents the Plaintiff had advanced moneys and that the Defendants were in default. In large part the documents incidental to each application followed the same form and emanated from the Plaintiff or a mortgage originator the Plaintiff used and who had facilitated the transactions, an organisation known as CHL. The first application made in early November 2003 was for a sum of $380,000. Before any of this sum was advanced the amount sought increased and a second application for $440,000 was made later in the same month. In August 2004 a third application, this time for $44,000 was made and when granted this sum was used to reduce the amount owing under the $440,000 facility. Pleadings 1. There were a number of amended pleadings filed from time to time during the currency of the litigation. As of 5 January 2012, the latest versions were: First Statement of Cross-Claim filed on 6 July 2011 Amended Statement of Claim filed on 19 September 2011 Amended Defence filed on 17 November 2011 Defence to the Statement of Cross-Claim filed on 5 January 2012 1. In the Statement of Claim the Plaintiff claimed under the loan agreement for $440,000 and the mortgage dated 11 December 2003. In their Defence, in addition to denying most of the significant allegations in the Statement of Claim, the Defendants contended that they did not enter into the agreement and alternatively, that it was void or should be set aside. They relied, inter alia, on matters asserted in a Cross-Claim. 2. In that Cross-Claim they alleged that their signatures had been forged, that the Plaintiff had been guilty of unconscionable conduct by reason, inter alia, of the Defendants' limited education and understanding, their lack of benefit flowing from the transaction, that their signatures had been procured by undue influence and knowledge of many of these matters on the part of the Plaintiff. The Defendants also relied on the Contracts Review Act 1980 (NSW) and the Consumer Credit Code (Cth). 3. In an Amended Statement of Claim filed on 19 September 2011 the Plaintiff expanded the basis of its claim to rely also on the documents and circumstances of the $380,000 and $44,000 transactions. The issues expanded in late 2012. In the Amended Statement of Cross-Claim filed in November 2012 the Defendants relied on what were asserted to be failures by the Plaintiff to follow its lending practices and guidelines. In the Defence to the Amended Cross-Claim filed on 21 December 2012 the Plaintiff indicated it placed reliance on a number of other actions of the Defendants incidental to the $440,000 loan. Later pleadings raised some additional issues but none of present significance. 4. Because reliance was placed on some of the Court procedures and orders it is convenient to refer to these now. The proceedings were issued in the Possession List and accordingly Practice Note SC CL 6 applied to them. The first directions hearing occurred on 20 July 2011 when a registrar made orders for the Plaintiff and Defendants to serve evidence on which they intended to rely by specified dates. There followed numerous other directions hearings - about 20 - dealing inter alia with the pleadings and, in effect extending time for the service of evidence. There was an interlocutory skirmish concerning the production of documents. 5. So far as the records of proceedings before the registrar goes, there seems to have been no attention given to the question whether, given the issues, proceeding by way of affidavit was appropriate. Clause 27 of SC CL 6 provides that in the circumstances contemplated by the clause the "Usual Order for Hearing" will be deemed to have been made and all parties seem to have assumed that that order applied. I am content to accept that their assumption is correct. That Usual Order is in terms: By no later than 7 working days before the trial date the parties are to file a Court Book consisting of all pleadings, all evidence, any objections to evidence (limited to those that are essential having regard in particular to s 190(3) of the Evidence Act 1995), a clear, concise, joint statement of matters of fact and law that are really in dispute, and a short outline of submissions. The Court book is to be clearly marked on the front cover with the hearing date. Affidavits 1. The first affidavit to which it is appropriate to refer is one of Jayne Gurney affirmed on 24 January 2012 (referred to in the Court Book as of 1 February 2012, the date it was filed). The affidavit is of 10 pages and exhibits some 86 pages of documents. Ms Gurney is the Manager, Legal and Recovery, of the Plaintiff and was not involved in the arranging or effecting of the transaction which led to the litigation. She records in the affidavit the production to her of a number of documents and summarises their apparent operation. By way of example, paragraph 5 reads: On or about 5 November 2003 the Defendants applied to the Plaintiff for financial accommodation for future investment purposes. A copy of the application is in tab 2 in Exhibit "JG1". The defendants provided the following documents in support of the loan application… 1. Understandably, given Ms Gurney's lack of personal knowledge, the first and third of the sentences just quoted were not pressed over objection. Understandably also, for it was equally inadmissible for the same reason, counsel for the Plaintiff adopted a similar approach in respect of the vast bulk of the balance of the body of the affidavit other than the description of the documents exhibited. 2. Given that Ms Gurney had no personal knowledge of the matters referred to in the sentences quoted and not pressed, and that well before this affidavit was affirmed the pleadings made it clear that the Defendants were denying the agreement on which the Plaintiff relied, asserted that they did not enter into it, denied signing it and asserted that their signatures were forged, any half competent lawyer should have known those statements would have been objected to, were inadmissible and were not worth the paper they were written on. The same observations may be made in respect of what I have referred to as the vast bulk of the rest of the affidavit itself. 3. The documents included in Exhibit JG1 were photocopies. Objection was taken to them but was withdrawn conditional on the Plaintiff's counsel tendering the original files. He agreed to do so although as things transpired they were tendered by the Defendant's counsel without objection. In her 24 January 2012 affidavit Ms Gurney does not indicate the sources of the documents in Exhibit JG1 but a comparison with those annexed to a later affidavit shows that virtually all of the documents in Exhibit JG1 come from one or other of the files of the Bank, CHL and Galilee & Associates, solicitors who had acted for the Bank in the implementation of the loan agreements. (Between acting on the subject transaction CHL was taken over by an organisation with the initials AMO and not uncommonly that nomenclature was used in the course of proceedings before me. It will be convenient in these reasons generally to refer to the relevant documents as those of CHL.) 4. It was also agreed that, as a matter of convenience the corresponding documents in the Court Book, which contains only photocopies, could be taken as the exhibit JG1. Documents that came into evidence following the withdrawal of the objection were the following, no significant number, if any, of which could be regarded as irrelevant: Property loan application - $380,000 – executed 5/11/2003 (pp85-88) CHL privacy consent annexure – executed – faxed Oct/Nov 2003 (p89) NAB account statement 23/11/2002-22/5/2003 (p90) Copy Aristides' and Maria's driving licence (pp91-92) Direct debit request – executed 23/11/2003 (p93) Borrower's certificate – executed 23/11/2003 (p94) Authority to date & pay advance – executed 23/11/2003 (p95) Home loan contract $440,000 – executed 8/12/2003 (pp97-112) Lenders mortgage insurance privacy consent – executed (undated) (pp113-114) Mortgage AA277559S – executed 11/12/2003 (pp115-116) Registrar General memorandum 2469542R (pp117-133) CHL advices to Defendants that loan settled 11/12/2003 (pp134-135) Product conversion application - $44,000- executed (p136) Home loan contract $44,000 – executed 14/9/2004 (pp137-155) Lenders mortgage insurance privacy consent – executed (undated) (pp156-157) - Note the signatures to this privacy consent differ from those at pp113-114 Authority for regular payments – executed 14/9/2004 (p158) Galilee letter 16/2/2011 and notices to Aristides Stamatis (pp159-164) Galilee letter 16/2/2011 and notices to Maria Stamatis (pp165-170) 1. In the immediately preceding paragraph and others taking a similar form, I have adopted a description of some of the documents which is very abbreviated. Given the issues dealt with in these reasons, that description is sufficient for present purposes. I have also not found it necessary to refer to all of the documents, even those which are the subject of duplication. I record also that the term "executed" is intended to denote the appearance of the documents so described without consideration of whether signatures appearing thereon are genuine. The page numbers included are those in the Court Book where the relevant document is to be found. 2. It may well be also that the documents "lenders mortgage insurance privacy consent" and similar documents in other lists were in fact part of the home loan contracts referred to nearby in the lists. The possibility does not affect the substance of these reasons. 3. On 9 March 2012 a Notice of Change of Solicitor was filed recording that the Plaintiff had appointed Mr Pringle of Gadens Lawyers to act as the Plaintiff's solicitors. Prior to that the solicitors acting for the Plaintiff in these proceedings had been Galilee & Associates. 4. On 17 April 2012, Ms Lynne Hughes, the solicitor for the Defendants swore a three page affidavit to which she exhibited two bundles of documents. The first labelled LH1 consisted of some 292 pages. Included within that exhibit and arranged by Ms Hughes in chronological order were 284 pages being all of those produced by Galilee & Associates pursuant to a Notice to Produce that required the production of: Any documents evidencing or recording correspondence between the Defendants and the Plaintiff, or otherwise referring or relating to any loans by the Plaintiff to the Defendants; in the period from 1 October 2003 to 28 February 2011, including but not limited to… Any documents referring or relating to Mr Constantinos Stamatis or Cuir Pty Limited brought into existence in the period from 1 October 2003 to 28 February 2011… 1. Included in the documents in Annexure LH1 were: Property loan application $380,000– executed 5/11/2003 (pp1403-1406) CHL privacy consent annexure – executed - faxed Oct 2003 (p1407) Property loan application $380,000 – executed 5/11/2003 (pp1408-1411) CHL privacy consent annexure – executed – faxed Oct/Nov 2003 (p1412) Fax note Con Stamatis to Michael Aboud re Defendants' tax returns for 2002 and 2003, probably faxed on 5/11/2003 (p1413) Plaintiff's formal approval - $440,000 - 5/12/2003 (p1414) Lo Doc declaration – $440,000 ($380,000 deleted) - executed 6/11/2003 (p1415) List of CHL charges re $440,000 loan (p1416) Consumer reports Aristiois and Maria Stamatis – 7/11/2003 (pp1417-1420) Adelaide Bank fax – $380,000 - 10/11/2003 (p1426) NAB account statement - 23/11/2002-22/5/2003 (p1427) CHL valuation request - 10/11/2003 (p1428) DTS valuation – 11/11/2003 (pp1429-1434) Adelaide Bank fax – $380,000 - 10/11/2003 (p1440) Plaintiff's conditional approval - $380,000 – 11/11/2003 (p1441) Plaintiff's conditional approval - $380,000 – 11/11/2003 plus notes plus part DTS valuation (pp1444-1449) Adelaide Bank formal approval - $380,000 – 13/11/2003 (p1452) Home loan contract - $380,000– (unexecuted) 14/11/2003 (pp1453-1469) Lenders mortgage insurance privacy consent (unexecuted) (pp1470-1471) Home loan contract - $380,000 – 14/11/2003 (part only) (p1477) Amendment request form from Aristiois to Aristides (p1478-1479) Photocopy driving licences of Aristides and Maria Stamatis (pp1481-1482) NAB account statement 23/11/2002-22/5/2003 (p1483) Amendment request form - $380,000-$440,000 – faxed 4/12/2003 (pp1485-1486) Lo doc declaration - $440,000 ($380,000 deleted) - 6/11/2003 (p1487) CHL fee statement – faxed 4/12/2003 (p1488) Home loan contract - $440,000 – executed 8/12/2003 (pp1489-1505) Lenders mortgage insurance privacy consent – executed (undated) (pp1506-1507 Galilee Solicitors' certificate - 9/12/2003 - plus note "03034256" (pp1509-1511) Galilee Solicitors' certificate - 9/12/2003 (pp1512-1513) Settlement confirmation 12/12/2003 (p1517) Direct debit request – executed 23/11/2003 (p1519) Product conversion summary 25/8/2004 (p1521) Product Conversion Application $44,000 – executed – (pp1522-1525) Home loan contract - $44,000 – executed 14/9/2004 (pp1530-1548) Lenders mortgage insurance privacy consent – executed (pp1 549-1550) Mortgage Acknowledgment (p 1551) Title Search (p 1552) Conversion checklist (p1553) CHL letters to Defendants 14/10/2004 (pp1555-1556) Product conversion application and summary – $44,000 - executed 25/8/2004 (pp1559-1562) Adelaide Bank formal approval - $44,000 – 26/8/2004 (p1563) Correspondence and notes 2009 (pp1566-1578) Australian Government certificate of transfer (1579-1584) Amendment request - Aristiois to Aristidis - (pp1585-1586) Amendment request - $380,000 to $44,000 (pp1587-1588) Photocopy driving licences of Aristides and Maria Stamatis (pp1589-1590) Loan statements and debit/credit summary 2/1/2004-22/7/2009 (pp1591-1635) Plaintiff's internal notes – 29/11/2010-16/9/2011 (pp1636-1676) Title and ASIC searches June 2011 (pp1677-1689) 1. The second bundle of document labelled Exhibit LH2 to Ms Hughes' affidavit of 17 April 2012 consists of a selection she made from a bundle of documents produced by the Plaintiff in response to a Notice to Produce requiring the production of "any documents recording or evidencing the Plaintiff's policies or procedures of the Plaintiff in relation to processing or evaluating applications for loans in force during the period from 1 July 2003 to 31 December 2004". LH2 occupied pages 1690 to 1782 of the Court Book but, apart from recognising that fact, there is no occasion in these reasons to refer to LH2 again. 2. On 17 April 2012 Aristides Stamatis, one of the Defendants, swore an affidavit of some nine pages giving his account of his involvement in the relevant transactions and what he asserted was his limited capacity to understand them. He annexed some financial records inconsistent with information in some of the documents in JG1 and dealt with the topic of his signatures to various documents. Documents falling into this latter category were identified by reference to the documents contained in Exhibits JG1 and LH1. Mr Stamatis' affidavit and annexures occupies some 55 pages. 3. Also on 17 April 2012 Maria Stamatis, the second of the Defendants, swore an affidavit of some nine pages giving her account of her involvement in the relevant transactions, what she asserted was her limited capacity to understand and dealing with the topic of her signatures to various documents. Again such documents were identified by reference to ones contained in Exhibits JG1 and LH1. 4. On 18 April 2012 George Stamatis, a son of the Defendants, swore an affidavit consisting of some five pages and 45 pages of annexures. The affidavit is largely concerned with what might be described as background information as distinct from the transactions which were the principal subject of the litigation. None of the annexures were copies of documents on which the Plaintiff relied or purported to be signed by the Defendants. 5. On 25 May 2012 Mr Christoper Anderson swore an affidavit. Mr Anderson is a Forensic Document examiner who was engaged by the Defendants' solicitor. His affidavit itself is of two pages but annexes some 95 pages consisting of his letter of instructions, CV report, some specimen signatures and copies of nine documents bearing signatures he was asked to examine. Those documents included the Property Loan Application of 5 November 2003 and a few pages from each of the Home Loan Contracts of 8 December 2003 and 14 September 2004. The tenor of the report is that Con Stamatis wrote some of the signatures appearing to be those of his mother, viz those on a Property Loan Application of 5 November 2003 and a Home Loan Contract dated 8 December 2003. Mr Anderson is silent as to the signatures purporting to be those of Mr Aristides Stamatis on these documents. He said that he found no indications of forgery in seven other documents 6. There is no reason to criticise the affidavits of Mr and Mrs Stamatis, or those of Mr George Stamatis or Mr Anderson. 7. On 8 July 2013 Ms Gurney affirmed another affidavit which, with its annexures, totals 23 pages. In large part it concerned the affairs of Con Stamatis who, in my principal judgment, I concluded had forged the Defendants' signatures on numerous occasions in order to benefit himself. I make no criticism of this affidavit. 8. On 9 July 2013 Ms Gurney affirmed a third affidavit. In my principal judgment I expressed a view of that affidavit from which I see no reason to resile: 253 Another issue arises in relation to the affidavit of Jane Gurney of 9 July 2013. In it in the course of some 70 paragraphs she summarises or recites the very obvious nature of documents annexed. Her remarks add nothing or virtually nothing to what would be immediately apparent to any Judge on the first sighting of the documents. Many of the documents annexed seem utterly irrelevant to the issues in the case and while I accept that she often states the source of the documents, there is a far more efficient way of doing that. Paragraph 53 strikes me as a supreme example of waste. 1. Paragraph 53 of that affidavit is in the following terms: On 15 December 2003 Louise Williams sent a letter dated "Monday, 15 November 2003" to Mr and Mrs Stamatis. I verily believe that the date typed on the letter contains a typographical error and the correct date of the letter should have read "Monday, 15 December 2003". The basis upon which I hold this belief is that: (a) the first sentence of the letter confirms that the 2003 transaction "settled on 11/12/2003", about a month after the date of the letter; and (b) I have carried out a search and note that 15 December 2003 was a Monday, while 15 November 2003 was a Saturday. The letter dated 15 November 2003 is derived from the Galilee file and a copy appears behind Tab 58 of Exhibit JG2. 1. Typical of the descriptions provided in the 70 paragraphs (out of a total of 84) which I criticised are the following; 17 At 11.53 on 19 November 2003, Galilee received a facsimile of 3 pages from CHL, enclosing the following documents: (a) fax cover sheet dated 19 November 2003 (page 1 of 3); (b) copy of a driver's licence for Aristidis Stamatis (page 2 of 3); and (c) copy of a passport for Maria Stamatis (page 3 of 3). The facsimile dated 19 November 2003 is derived from the Galilee File and appears behind Tab 10 of Exhibit JG2. 21 On 23 November 2003, the following documents appear to have been executed: (a) Home Loan Contract with disclosure date 14 November 2003. The original signed Home Loan Contract is derived from the Galilee File and a copy appears behind Tab 14 of Exhibit JG2. (b) Warranty. The original signed warranty is derived from the Bank File and a copy appears behind Tab 15 of Exhibit JG2. (c) Direction to pay. The original direction to pay is derived from the Gaililee File and a copy appears behind Tab 16 of Exhibit JG2. (d) Application for Exemption from Mortgage Duty: Refinancing of Loans. The original Application for Exemption is derived from the Galilee file and a copy appears behind Tab 17 of Exhibit JG2. (e) Authority to date and pay advance. A copy derived from the Galilee File appears behind Tab 18 of Exhibit JG2. (f) Direct debit request. The original direct debit request is derived from the AMO File. A copy is derived from the Galilee File and a copy appears behind Tab 19 of Exhibit JG2. (g) Borrowers certificate. A copy is derived from the Galilee File and a copy appears behind Tab 20 of Exhibit JG2. 1. The sub-paragraphs were spaced out enough such that three lines of typing could have appeared in the spaces. The affidavit thus extended to more pages than it needed to. 2. The affidavit itself is some 21 pages long and annexes 418 pages described as Exhibit JG2. Ms Gurney deposes to the source of her knowledge of the matters contained in the affidavit being derived from her 24 January 2012 affidavit, the documents in Exhibit JG1, and Exhibit JG2. She says that the documents contained in Exhibit JG2 derive from three sources, the Bank's relevant files relating to the Defendants, a file held by Galilee & Associates, the solicitor who acted for the Bank in respect of the relevant loan, and files held by Australian Mortgage Options Pty Ltd and identifies the one of these sources from which each document came. Ms Gurney deposes to having placed the documents from these three sources in chronological order and also to the fact that Australian Mortgage Options Pty Ltd had purchased the mortgage management books of Combined Home Loans Pty Ltd, a company which was the Bank's former mortgage manager and originator at the time of the transactions involving the Defendants. 3. The documents contained in Exhibit JG2 included the following: Documents re relationship between the Plaintiff and CHL and Plaintiff and solicitors (pp216-294) Fax note Con Stamatis to Michael Aboud re Defendants' tax returns for 2002 and 2003 (p295) Tress Cocks & Maddox letter 7/7/2003 (p 296) CHL Fax 30/10/03 (p 297) Property loan application - $380,000 – executed 5/11/2003 (pp298-300) Privacy consent annexure – executed (p301) Adelaide Bank formal approval - $380,000 - 13/11/2003 (p304) Property loan application - $380,000 – executed 5/11/2003 (pp305-308) Privacy consent annexure (p309) DTS valuation (pp310-313) NAB account statement 23/11/2002-22/5/2003 (p314) Consumer reports Aristiois and Maria Stamatis - 7/11/203 (pp315-318) Title Search (p 319) Amendment request form "Aristiois" to "Aristides" faxed 18/11/03 (pp321-322) Photocopy driving licences Aristides and Maria Stamatis (pp324-325) Letter Galilee to Defendants 20/11/2003 (pp326-328) Home loan contract - $380,000 – 20/11/2003 - unexecuted (pp331-349) Lenders Mortgage Insurance Privacy consent – unexecuted (pp350-352) Home loan contract - $380,000 – 23/11/2003 – executed by Defendants (pp353-368) Lenders Mortgage Insurance Privacy consent – executed (pp369-370) Warranty by Defendants - $380,000 – executed 23/11/2003 (pp371-372) Direction to pay – executed 23/11/2003 (p373) Application for exemption from mortgage duty - $380,000 – executed 23/11/2003 (two copies) (pp374-379) Authority to date advance – executed 23/11/2003 (p380) Direct debit request – executed 23/11/2003 (p381) Borrowers' certificate – executed 23/11/2003 (p382) Lenders mortgage insurance privacy consent – executed (pp383-384) Information re mortgage stamp duty – executed (pp385-386) Authority to NAB to surrender deeds – executed (p387) Galilee solicitors letter 23/11/2003 (p 389) Amendment request from $380,000 to $440,000 – faxed 4/12/2003 (pp395-396) Lo doc declaration - $440,000 ($380,000 deleted)- executed 6/11/2003 (p397) List of CHL charges re $440,000 loan – faxed 4/12/2003 (p398) Plaintiff's formal approval - $440,000 – 5/12/2003 (two copies) (pp399-401) Home loan contract - $440,000 – unexecuted (pp402-417) Lenders mortgage insurance privacy consent – unexecuted (pp418-419) Home loan contract - $440,000 – executed 8/12/2003 (pp420-436) Letter Galilee & Associates to Asset Conveyancing 8/12/03 (pp 437-438) Authority to date advance – executed 23/11/2003 (p441) Letter 9/12/2003 Tress Cocks & Maddox to Asset Conveyancing (p446) Galilee Solicitors' certificate - $380,000 - 9/12/2003 (pp449-451) Galilee Solicitors' certificate - $380,000 - 9/12/2003 (pp453-455) Mortgage AA277559S in favour of Plaintiff – executed 11/12/2003 (pp476-477) CHL Advice to Defendants re loan has settled (pp478-479) Settlement confirmation 12/12/2003 (p480) Certificate of title FI 7/14868 – issued 22/12/2003 (p483) Loan statements and debit/credit summary – 14/11/03–26/12/11) (pp485-519) Product conversion summary - 25/8/2004 (pp522) Product Conversion Application - $44,000 – partly executed (p 523 - 526) Product Conversion Summary – 25/8/2004 (p 528) Product Conversion Application – $44,000 – partly executed (p529 - 532) Plaintiff's formal approval - $44,000 - 26/8/2004 (p534) Home loan contract - $44,000 – unexecuted (pp535-556) Lenders mortgage insurance privacy consent – unexecuted (pp557-559) Mortgage acknowledgment - executed 14/9/2004 (p560) Home loan contract - $44,000 – executed 14/9/2004 (pp561-579) Lenders mortgage insurance privacy consent – executed (pp580-581) Application to transfer funds – executed 14/9/2004 (pp582-583) Title Search (p 584) Conversion Checklist (p 585) CHL letters to Defendants 14/10/2004 (pp586-587) Loan statements and debit/credit summary 4/1/2005-3/2/2010 (pp590-609) Plaintiff's file notes (pp613-615) Australian Government certificate of transfer (pp616-622) Account summary - 11/12/2003-26/2013 (pp626-632) 1. On 10 July 2013 Ms Candece Nicholls affirmed an affidavit. The body of the affidavit occupies eight pages and there are some 57 pages of exhibited documents described as Exhibit CN1. Ms Nicholls was a bank officer who was involved in the original transactions. Her affidavit refers to documents that the Bank received, bank practices at the time and the part she and others did or would have played in consideration of the documents. I make no criticism of this affidavit save that the documents exhibited contributed to the extent of the duplication that existed in the case. Included in the documents exhibited by Ms Nicholls are the following: Amendment request - $380,000-$440,00 (pp644-645) Lo doc declaration - $440,000 ($380,000 deleted) - 6/11/2003 (p646) List of CHL charges re $440,000 loan (p647) Property loan application - $380,000 – executed 5/11/2003 (pp650-653) CHL privacy consent annexure – executed (p654) List of CHL charges re $380,000 loan (p655) Consumer reports Aristiois and Maria Stamatis (pp656-659) NAB account statement – 23/11/2002-22/5/2003 (p660) Lo doc declaration - $380,000 – executed 6/11/2003 (p661) Plaintiff's conditional approval - $380,000 - 11/11/2003 (p687) Plaintiff's conditional approval - $380,000 - plus notes (p688) DTS valuation (part) 11/11/2003 (pp689-692) Plaintiff's formal approval - $380,000 – 13/11/2003 (p693) Plaintiff's formal approval - $440,000 – 5/12/2003 (p697) 1. Also on 10 July 2013 Ms Tiffany Browne swore an affidavit. The body of the affidavit consists of six pages and there are some four pages of annexures. Ms Brown was also involved in the original transactions. I make no criticism of this affidavit. 2. On 12 July 2013 Ms Vanessa Magee, a solicitor of Gadens, swore a three page affidavit to which were exhibited some 423 pages marked VMM1. I shall say more about this affidavit below. 3. On 11 July 2013 Ms Michelle Novotny swore an affidavit. Ms Novotny is a forensic document and handwriting examiner. A copy of a report she had prepared, including photocopies of 19 questioned and further specimen documents was annexed and the whole occupied some 195 pages. Ms Novotny's report indicated significantly more apparent forgeries than had Mr Anderson. 4. On 27 August 2013 the Defendants swore short affidavits dealing with documents or signatures which they apparently had not seen before, at least in the course of the litigation. 5. On 27 August 2013 a partner of the solicitor for the Defendants swore an affidavit annexing copies of four short documents produced by the Plaintiff pursuant to a Notice to Produce. I make no criticism of the affidavits referred to in this paragraph or the two immediately preceding paragraphs. 6. On 7 November 2013 the two handwriting experts Mr Anderson and Ms Novotny produced a joint report. There are a number of qualifications in the report arising from the fact that some documents had not previously been seen by Mr Anderson and Ms Novotny's instructions had not included that some signatures were to be attributed to Con Stamatis. Included in the experts' conclusions was: In summary and within the limitations of Mr Anderson having only conducted cursory inspections of the questioned signatures on the additional documents, there is no disagreement between the findings of Mr Anderson and Ms Novotny. 1. The joint report went on to conclude that a significant number of the signatures purporting to be those of the Defendants were written by their son Con. 2. To provide some context against which the individual matters to which I refer may be judged, the Court Book in all included 1998 pages distributed among four large lever-arch files and one medium sized one. The Court Book may be broken down as follows: Description Total pages Item pages Pleadings 72 p1-72 Plaintiff's non-handwriting evidence p73-1134 87 including JG1 pp84-170 1062 417 including JG2 pp216-632 53 including CN1 pp642-697 422 including VMM1 pp713-1134 Plaintiff's handwriting evidence pp1135-1329 195 Defendants' affidavits pp1330-1782 391 including LH1 pp 1397-1787 453 93 including LH2 pp 1690-1782 Defendants' non-handwriting further affidavits 69 pp1783-1833, 1931-1948 Defendants' handwriting evidence 97 pp1834-1930 Joint handwriting report 9 pp1949-1957 Notices to admit/disputing 14 pp1958-1971 Defendants' submissions 24 pp1972-1995 Defendants' evidence objections 3 pp1996-1998 TOTAL: 1998