JUDGMENT
1 MASTER: The plaintiff provided financial accommodation for a business conducted under the name "Fuller Motors". During the conduct of that business, it obtained security (involving two mortgages and two guarantees). It now looks to its securities to obtain possession of the secured properties and to recover moneys which it alleges are owed in respect of that business (see Amended Statement of Claim).
2 The claim is defended. Relief is sought by way of Cross-Claim inter alia in respect of the guarantees (see Further Amended Cross-Claim filed on 4 March 2004). The cross-claimants are the first, second and fourth defendants. Claims made inter alia in respect of the mortgages were not pressed.
3 Largely, the plaintiff's case in chief was formal in nature. Initially, two affidavits were read. The deponents were Lillian Zivanovic and Sandra Campagna. The material deposed to related inter alia to the quantification of the alleged debt. The latter deponent was cross-examined. The cross-examination ventilated questions going to the accuracy of the quantification. This led to Miss Campagna swearing further affidavits and undergoing further cross-examination.
4 The quantification of the alleged debt and the validity of the demands was in issue. There was a question concerning a parcel of the alleged claim in the sum of $21,056. This parcel was disputed on the basis that the plaintiff had processed a number of unsigned cheques the total of which was in that sum. There was a question of the liability of the defendants to pay for certain line fees. There was a question of liability to pay an amount claimed for costs incurred after the institution of the proceedings. There was also the question of interest claimed in respect of those amounts.
5 The defendants relied on a number of affidavits sworn respectively by the first, second and fourth defendants. All deponents were cross-examined. The first defendant was cross-examined at considerable length.
6 In reply, the plaintiff relied on affidavits sworn by Mr Hozack (a solicitor), Mr House (bank manager at Ulladulla), Mr Whitford (accountant and acting manager), Mrs Hensley (assistant to the manager) and Mrs Howe (an employed bank officer who performed various duties including as a teller and as a typist). All deponents were cross-examined.
7 In addition to this material, the parties placed in evidence a considerable body of documentation (including the alleged securities, correspondence between the parties and internal documentation of the plaintiff).
8 The first and second defendants are husband and wife. They are now separated. The third defendant was the father of the first defendant. He is now deceased (he died in 1999). The fourth defendant is his widow. She has been appointed as representative of his estate for the purposes of these proceedings.
9 The business was conducted as a partnership and concerned the buying and the selling of second-hand cars. It commenced operations at rented premises in Ulladulla during early 1993. In late 1996, the business moved to Sydney. It ceased operations in or about 30 June 1997.
10 The business was managed by Tony Fuller (he was never a partner in the business). For some part of that time he was an undischarged bankrupt (he was discharged on 15 September 1995). It was said that he had a forceful personality. He may have been a significant cause of the failure of the business. The plaintiff regarded him as the point of contact or representative of its customer.
11 The first defendant worked in the business (as a salesman and preparing vehicles for sale). He signed some cheques (none after late 1996). He was paid a salary. He also worked privately as a mechanic. Some of the work was done at his home. He ceased to play any active part in the business upon it moving its operations to Sydney. Thereafter it was operated by the third defendant and Tony. There seemed to be an arrangement pursuant to which the first defendant would be bought out. It did not come to fruition.
12 The third defendant also had a full time job elsewhere but still played a part in the daily management of the business. The second and fourth defendants played no part in the operations of the business. The fourth defendant also had a job elsewhere.
13 At some stage, there was a practice of taking cash drawings in the sum of $300 on a weekly basis. The evidence reveals that the third defendant at least regularly drew and cashed cheques in this sum and that he drew a number of cheques intended to be cashed by the first defendant. The latter himself refused to participate in the process. However, during a period of about two years the second defendant, cashed cheques and used the money for family purposes.
14 The partnership came into being following discussions had between father and son in late 1992. There may have been earlier business activities involving both brothers.
15 There is documentation relating to a partnership (including financial statements) and taxation returns (commencing in the 1993 tax year) which records a partnership constituted by the first, third and fourth defendants (Exhibit N). One of the documents was a copy partnership deed which was dated 1 December 1992. The partnership documentation and the tax returns were prepared by various accountants over a number of years. There is evidence that the deed was not signed until 1994.
16 Contrary to what is presented in this documentation, the defendants maintain that the business was conducted as a partnership between the first and third defendants.
17 Following the partnership documentation and other financial material being given to the plaintiff, largely thereafter, it treated the fourth defendant as a member of the partnership. Curiously, whilst the terms of the unlimited guarantee later to be signed by the third and fourth defendants were prepared on the basis that the latter was not a customer, Mr House had proceeded on the basis that she was and accordingly did not suggest that she obtain independent advice.
18 A bank account was opened with the plaintiff at its Ulladulla Branch in about February 1993. It was in the name of BJ & PS Fuller and the account was styled "Fuller Motors No 2 Account - Operating Account". There had been an earlier No 1 account in the names of BJ & BG Fuller (it later became dormant). It is of no significance in these proceedings.
19 An account-opening card was signed by both father and son. It provided that cheques were to be signed by both of them. Later, Mr Whitford changed this to one signature after speaking to either Tony or the third defendant. The first defendant has given evidence of complaint about the practice of paying cheques presented with one signature only.
20 Initially, there was no overdraft facility and the plaintiff held no security. Tony was the party who maintained contact with the plaintiff.
21 The first and second defendants owned their own home in Ulladulla (236 Princes Highway, Ulladulla) and so did the third and fourth defendants (31 Princes Highway, Ulladulla). Both properties came to be mortgaged in favour of Citibank. In 1993, the third and fourth defendants granted their mortgage to raise a sum of $50,000 as finance for the business. The first and second defendants' mortgage involved a refinancing and also raised moneys for the business. The first defendant also contributed some stock. The loans were treated as business expenses. Mortgage repayments were made and rates were paid from the business.
22 By July 1994, relations were strained. The account was being overdrawn and used as an overdraft facility. It had been poorly managed by the plaintiff and belated action was being taken to get it in order. Towards the end of 1994, a number of cheques were dishonoured. Questions of overdraft accommodation and security came under consideration. Financial statements were provided. A purchase of a property from which to run the business was also under consideration. At about this time, the plaintiff became aware of the partnership documentation and of the fourth defendant's co-ownership of No 31. The first defendant deposes that during both 1994 and 1995 he was receiving regular encouragement from Tony to change the home loan from Citibank to the plaintiff.
23 In April 1995, a proposal was put involving refinancing (a pay out of the Citibank loan) and the giving of security by the third and fourth defendants over their home for an overdraft facility. At least by June 1995, the plaintiff was also contemplating targeting the Citibank loan had by the first and second defendants. Later, the process of approval was pursued by Mr House.
24 On 29 May 1995, the plaintiff approved an overdraft limit of $50,000. The putting of the proposal arose out of contact made between the plaintiff and Tony. Later, the plaintiff prepared documents. Documents were given to Tony for the purpose of arranging execution.
25 Following upon conversation had between the third and fourth defendants, Tony arranged the execution of a mortgage. It was dated 30 June 1995 and saw Tony as an attesting witness. The guarantee and other documents were returned without being at least fully executed.
26 The manner of the execution of the mortgage was seen as a problem by the manager's assistant (Mrs Hensley) and was thereafter seen as being regularised by her in accordance with the plaintiff's practice. She arranged for the third and fourth defendants to attend on the plaintiff. This was done on 3 July 1995. They re-executed the mortgage. On that occasion, she obtained also the execution of other documents. They executed an unlimited guarantee and a bank document known as a Form S2/148 (it linked the guarantee and the mortgage). The latter referred to "our unlimited guarantee". According to Mrs Hensley, the third and fourth defendants declined the opportunity to have the documents explained by a solicitor. Further she says that, in the presence of Mrs Howe, she gave them an explanation of the transaction. She did not tell them of the then indebtedness to the plaintiff.
27 On 19 July 1995, overdraft accommodation was temporarily fixed at $75,000. A limit in that sum was approved on 27 October 1995. The material suggests that by at least December 1995 the plaintiff was looking for further security and had in mind what was then thought to be the home of the first defendant. At this time, it was unaware that the second defendant was a co-owner.
28 An increased overdraft limit was approved on 12 December 1995. The approval was subject to conditions (security as proposed, acknowledgment of guarantors, independent advice o/a P S Fuller). A home loan approval was also given subject to inter alia a taxation return.
29 The approval was of an overdraft limit of $100,000 and the housing loan was to be given to the first defendant. During May 1996, there were further developments which the plaintiff considered to be of great urgency. It informed Tony that it would not honour a cheque that had been drawn in the sum of $14,500 to pay the purchase price of a vehicle. Past contemplation of security from the first defendant was accelerated. The business was placed in a position where rushed action had to be taken to enable the cheque to be met. This involved it being reprocessed. The reprocessing took place after the execution of documentation on 21 May 1996.
30 The plaintiff set about having documentation prepared. Its records show that on 20 May 1996 the third defendant had collected documents but that they were unsigned. Documents could not then be signed by the first and second defendants because they were still on holidays. They returned by 21 May 1996.
31 Following upon conversation had with the third defendant, the first and second defendants executed both a mortgage over their home and an unlimited guarantee. The documentation is dated 21 May 1996. The execution of the mortgage was witnessed by Mr Whitford. The execution of the guarantee was witnessed by Mr Hozack. The first and second defendants attended at the Ulladulla Branch and executed the mortgage. The guarantee was collected from the Branch and taken to the nearby office of Mr Hozack. It was executed after the first and second defendants had been seen by him. At some stage, they also signed a Form S3/148. It was dated 21 May 1996. The signatures were not witnessed. The purpose of the form was to obtain an acknowledgment linking the mortgage to the guarantee.
32 The evidence concerning these events is conflicting. There are competing contentions. There have been changes in the recollection had by the first and second defendants.
33 The original recollection of the first and second defendants was that the mortgage was executed on 21 May 1996. The next recollection was that it was executed later on 18 June 1996 (because of the date of their home loan application). Subsequently it was conceded that the mortgage was signed on 21 May 1996 in the presence of Mr Whitford (it was remembered that they had returned from holidays on 20 May 1996).
34 The original recollection was that the guarantee was signed in October or November 1996 (following a conversation had with the third defendant). The subsequent recollection was that it was executed during June 1996.
35 Despite these changes of position, the first and second defendants were adamant that the documents were executed on different days. The execution of the mortgage was seen by them as a separate transaction involving a refinancing of their home loan only. The date of execution of the guarantee remained in contest throughout the proceedings. Ultimately, it was an issue of little significance.
36 There was also another issue. It was did they take other documents (including the S3/148) to Mr Hozack. This was an issue of some significance.
37 There seems to be no dispute about certain matters. The first and second defendants attended at the Branch and executed the mortgage. The plaintiff's records do not suggest that it was intended that this document be the subject of independent advice. Either on the same day or some time later they were given the guarantee. Mr Whitford arranged for them to see Mr Hozack. The first defendant took the guarantee with him. On the same day they later went to see Mr Hozack and then returned the executed guarantee to the plaintiff.
38 Certain other non-contentious matters appear from the plaintiff's documentation. The plaintiff's conditions had been satisfied by 13 June 1996. A home loan application was not made until 17 June 1996. The approval of it did not take place until 18 June 1996. As at 26 June 1996, the plaintiff was seeking an opinion as to whether or not the first and second defendants were considered safe for an unlimited guarantee. The mortgage transaction was not settled until 4 July 1996 (there was a need to effect settlement with Citibank).
39 There is conflict between the evidence of Mr Hozack and that of the first and second defendants concerning the meeting had with him. There is also conflict between the evidence given by Mr Hozack and that given by Mr Whitford.
40 Mr Hozack is a solicitor who has practised for many years in Ulladulla. He has done work for various banks. He had earlier done work for the first and second defendants. He presented as a witness who did his best to give truthful and reliable evidence.
41 Mr Hozack has no diary entry for the appointment. He produced other material (material from his miscellaneous file) which suggested that the date must have been sometime between the beginning of May 1996 and the 14th of June 1996.
42 He was unaware that the first and second defendants had given a mortgage to the plaintiff and that there was signed documentation (a Form S3/148) which linked the guarantee to that mortgage. His evidence was that the only document brought to him was the guarantee.
43 He said that he received a call from Mr Whitford around lunchtime. He was told that the purpose was to sign a guarantee and that there was urgency. He saw himself as acting for both the first and the second defendant. He said that he was not able to recall exactly the words of advice given by him. He had no file note as to what took place. He deposed as to a standard pattern adopted by him in advising clients on a guarantee. He recalls that he fitted them in between two appointments (between 2.30 and 3.30 pm). He has no independent recollection of the time taken to give the explanation. The first defendant paid his fees ($30 in cash). His hourly rate was $120.
44 The standard pattern is recorded in paragraph 10 of his affidavit. He relies on the certificates appearing on the guarantee and expressed that he remained satisfied that they understood the effect of the guarantee and voluntarily signed it. He said that he would not have read the guarantee to the first and second defendants.
45 In their affidavits both the first and second defendants say that they did not read the guarantee. In substance they both say that he did not fully explain it. In particular, it is said that he did not explain that it was an unlimited guarantee. Their view was that it was for a sum of $30,000 and unsecured. They say that he did not explain that the mortgage exposed their house. They saw it as a short visit. The first defendant said that he paid a fee of $90.
46 The first defendant deposes to being told that it was a standard form of bank guarantee and that it was fairly straightforward. The affidavit of Mr Hozack contains a number of references to the document as a standard guarantee.
47 Mr Whitford says that the mortgage, the guarantee and the Form S3/148 were executed on 21 May 1996. He said that he gave an explanation of the mortgage. His explanation did not relate it to the business, because it was a home loan. He treated it as being separate from the guarantee. He did not link them. He regarded the guarantee as a subject for independent advice. He did not tell them of the then indebtedness to the plaintiff. He made contact with Mr Hozack about 3.00 pm. He said that the first and second defendants took both the guarantee and other documents to Mr Hozack (including the Form S3/148) on that day, after his making arrangements with the latter to see them.
48 He has diary material which may be seen as supporting his version as to the date of execution. It says inter alia that forms were taken to Mr Hozack. The diary note does not mention any telephone conversation with Mr Hozack.
49 He concedes that the execution of the mortgage was to serve two purposes (to allow the refinancing and as security for the overdraft). At p292 of the transcript, he gave this evidence:-
"Q. I think we agreed this morning the urgency that arose
that brought them in to sign the mortgage was not in
connection with the home loan at all but rather in
connection with the requirement of the cheques to be met
on conditions involving their giving the mortgage,
correct?
A. Yes."
50 He said that he told the first and second defendant that they had to sign the mortgage to overcome the problem with the cheque. His evidence left me with the impression that on 21 May 1996 his immediate concern was to obtain signatures to the mortgage so that the cheque could be reprocessed.
51 There was evidence that suggested that the guarantee has been altered subsequent to its execution (so as to guarantee unlimited liability). This was not later pressed.
52 A temporary limit of $120,000 expired on 31 May 1996. The limit then reverted to $75,000.
53 On 18 June 1996, a permanent overdraft limit of $100,000 was approved (following earlier temporary approvals commencing December 1995). The overdraft limit was temporarily increased to $130,000 on 30 October 1996 (see Exhibit K) until 30 November 1996. It was then to revert to $100,000. This took place after the plaintiff had obtained the signatures of the defendants to a purported acknowledgment as a matter of urgency. It was a document prepared by Mr Whitford and addressed to Fuller Motors Pty Limited. He conceded that the document was misleading and did not fully disclose the true position (that the increase was for a month only and that it would then revert to $100,000). In a number of respects it was a carelessly prepared document. By this time, the business had moved to Sydney.
54 Thereafter, the financial position of the business worsened. At times, the overdraft exceeded $200,000. Ulladulla branch ceased to have conduct of the account by September 1997. The account was taken over by the high-risk recovery section.
55 In October 1998, the plaintiff made demands under the securities. The demands were not complied with. The proceedings were commenced in 1999.
56 This is a case in which credibility is of significant importance. The trial occupied about 6 days. The evidence threw up many areas of conflict. Fortunately, not all of it has to be resolved to determine this case.
57 I have closely observed all witnesses during the giving of evidence. In dealing with questions of credibility and reliability I have taken into account both demeanour and evidence.
58 The credibility and reliability of each of the three defendants has been the subject of vigorous attack. It seems to me that each of them did their best to give honest and reliable evidence. Despite this, generally speaking I consider that their independent recollections on matters concerning dates and circumstances of the execution of documents have shortcomings. I accept their evidence as to the understanding had concerning the partnership arrangements, who participated in the conduct of the business and received benefits from it.
59 The fourth defendant has very limited independent recollection. This was conceded during cross-examination. Her oral evidence revealed that she either had a poor or no recollection of inter alia what happened on 3 July 1995. This detrimentally affected much of what had been earlier deposed to in her affidavits. In my view, much of it was unreliable. I accept that she did not read the documents signed by her. Further, I accept that she played no part in the business.
60 Largely, I do not accept her version as to what took place at the branch on 3 July 1995. Where there is conflict, I prefer the evidence of Mrs Hensley and Mrs Howe.
61 Mrs Hensley has limited independent recollection. She has refreshed her recollection as to events from a diary note. She relies on her usual practice in giving explanations of documents.
62 Such usual practice may be found in her affidavit sworn on 2 March 2004. In such practice, the guarantee is described as an unlimited guarantee of the business debts and advice is given that the mortgaged property and the guarantee are linked.
63 She says that Mrs Howe was present whilst the explanation was being given.
64 Her diary note is dated 4 July 1995. It is a document which records events which took place both before and on 3 July 1995. Its contents are consistent with her evidence. They do not set out the detail of the explanation that was said to be given. It is signed by both Mrs Hensley and Mrs Howe.
65 Mrs Howe also had limited recollection. She says in her affidavit that she would only sign the diary note when satisfied that it was a complete and accurate record of the circumstances surrounding the explanation and execution of the securities.
66 In oral evidence, she recalled that Mrs Hensley gave "the usual spiel about taking the paperwork away if they wanted to". She had no recollection of any explanation of the securities. In re-examination she confirmed her belief that the content of the diary note was correct.
67 The second defendant conceded that her recollection of the execution of both the mortgage and the guarantee was poor. She does remember that they were rushed to execute the guarantee and that they were squeezed in to see Mr Hozack. She said "it was like rush, rush, rush." It was not put to her that any document other than the guarantee was taken to Mr Hozack.
68 There is a material conflict between what was said by the defendants in affidavit and oral evidence and what is presented in the documentation prepared by their accountants.
69 I accept that neither the second defendant nor the fourth defendant played any role in the business. Some incidental benefits were received. Neither of these two defendants was a party to the bank account nor a signatory thereto. In my view, the first defendant and his late father were the only de facto partners in the business.
70 The partnership deed may not have been executed until 1994. It was a creature of the accountants. It was used as a foundation to prepare business documents and taxation returns which had no relationship with reality. The documentation set up an artificial situation which was used to procure taxation advantages (including income distribution and tax deductions). Otherwise, it did not reflect what actually took place.
71 Where there is conflict between Messrs Hozack and Whitford, I do not accept the latter's evidence. He did not present as an impressive witness. It may be that his diary note should not be read as correctly recording the happening of such event on that day. The plaintiff's records contain compendious notes the date of which does not represent the date of events recorded. I prefer the evidence of Mr Hozack. His evidence that he was only given the guarantee was supported by the evidence of both the first and second defendants. It had a consistency with other evidence. I found it to be more plausible.
72 The conflict between Mr Hozack and the first and second defendants is not an easy matter to resolve. The recollection of all of these parties had its shortcomings. Whatever explanation he gave them, it related to one document only (the guarantee). He did not read the document to them. He had no exact recollection of what he had said. He had no notes. He was left to depose to a "standard pattern". I am not satisfied that he did give a full explanation. Whatever explanation he did give failed to bring home to the second defendant that she was executing an unlimited guarantee. I consider that he probably only told them that it was a standard form of guarantee and fairly straightforward. Whilst it could have been expected that she should have observed that the document was an unlimited guarantee, I consider it to be plausible that she did not read this document (or other documents signed by her) or address her mind to the contents. She had been unwilling to give a guarantee and she was then rushed to execute the document given to them by the plaintiff.
73 A common theme does emerge from the evidence of Mr Whitford and the first and second defendants. It was that the obtaining of the signatures to the mortgage was regarded as a separate transaction. It was seen as a refinancing of the home loan.
74 It was for this reason that Mr Whitford did not see any need for independent advice. It seems that the only reason for the plaintiff having it signed on 21 May 1996 was that it was seen as an essential step to enable the cheque for $14,500 to be re-processed on that day.
75 I shall now turn to the questions of quantification of the alleged debt and the validity of the demand.
76 The demands were dated 29 October 1998. They were made in the sum of $134,888.26.
77 The provisions of the guarantees provide that an amount that is liable to be paid thereunder becomes payable as soon as the plaintiff gives a written demand for payment.
78 The validity of the demands is attacked on the basis that the amount claimed includes an amount for eleven unsigned cheques and interest thereon. It is said that the cheques were not drawn according to the mandate of the account and their inclusion sees a significant overstatement of the alleged debt.
79 The original mandate required two signatures. In fact, largely they were paid on one signature only (whether or not the first defendant had made complaint about this practice).
80 The unsigned cheques were presented and paid by the plaintiff. Significantly, the payees seem to fit the category of regular trade creditors. Prior to the commencement of these proceedings, there had been no challenge to the payment of these cheques (despite a challenge to a contemporaneous forged cheque). No proceedings have been instituted to either recover the amounts paid or claim damages in respect thereof.
81 The plaintiff says that firstly the customer ratified each payment. Secondly it says that the cheques were paid in the ordinary course of the partnership business to reduce the indebtedness of the partners to their creditors. Accordingly, it is said that no loss was suffered. There is material which gives support to these submissions.
82 I am not satisfied that the plaintiff is required to give credit for the sum total of the cheques or any part thereof. I am satisfied that the partners were liable to pay the total amount of the unsigned cheques. Accordingly, I am not satisfied that the demands are thereby invalid.
83 The overdraft facilities entitle the plaintiff to make a claim for line fees. The question was the subject of little argument. The defendants dispute liability for line fees inter alia after the commencement of proceedings (the precise area of the dispute is ill defined). In written submissions, the period "after mid-1998" is identified. The amount involved has not been quantified. The relevant evidence is meagre.
84 The defendants contend that such fees have been made part of the claim for a period subsequent to a time when the account was on no further drawings.
85 The plaintiff contends that the facility remained available during the relevant period.
86 At first blush, it could be thought that such a claim represents an unmeritorious grab for further profit. It smacks of avarice.
87 The claim to line fees is based on the plaintiff's letter of offer dated 18 June 1996. Both that document and the limited submissions on the question in issue gave me little assistance in determining it.
88 It is a fee which is also known as a credit facility fee and is charged on the highest net overdraft limit applied to the account. It is calculated at the end of each quarter. It seems to me that it was intended to be regarded as at least part of the price to be paid by the customers for the having of an overdraft facility.
89 It has continued to be debited to the account. Whilst it appears that the account has not been formally closed by the plaintiff (it continues to issue inter alia annual Statements of Account), the overdraft has not been used for many years. The business ceased its operations in 1997. Presumably, the partnership went out of existence years ago. One of the former partners died in 1999. The claimed balance has continued to exceed the limit last fixed ($130,000 on 28 February 1997). The approval for that limit expired on 11 March 1997. Since then, there has been no approved limit. By October 1998, the account was regarded by the plaintiff as being "stagnant". At least since then no cheques have been drawn. If any cheque had been drawn, it would not have been met on presentation. It is said that the account was placed on a no further drawings basis.
90 In these circumstances, it seems to me to be ludicrous to contend that there is an overdraft facility on foot. A stage was reached where there was no limit and no existing facility upon which a line fee could be based. The basis for the charging of a line fee had disappeared many years ago.
91 In my view, liability to pay line fees has ceased. On the evidence before me, I am unable to determine precisely when that came to pass.
92 For completeness, I note that the account has also continued to be debited with an "Account Service Fee". However, no dispute is raised in respect of that matter.
93 The inclusion of costs in the claim was also little argued. This submission was founded on the bare reference to the decision of Baldry v Jackson (1976) 2 NSWLR 415. It was not said that the plaintiff was otherwise disentitled to so claim this amount. The rules of court have since been amended to address what was decided in that case. The present rules enable a party to rely on a cause of action arising after the commencement of proceedings (see Pt 20 r 1 (3A) ). I have not been addressed on any question of possible amendment. If there be a problem it may be capable of being cured by an appropriate amendment.
94 Leaving aside the questions of liability to pay the disputed areas of the alleged debt, there remains the question of the effectiveness of the certification of indebtedness tendered by the plaintiff.
95 The alleged debt has been certified in the sum of $428,709.91. The guarantees enable the plaintiff to give a certificate concerning inter alia the amount owing as at a specified day. They provide that the matter certified is final and binding to the full extent permitted by law.
96 There is argument as to whether the certificate is the product of a "Dobbs" clause. If it is, such clauses have been regarded as providing conclusive evidence subject to manifest error. It has been said that manifest error is that which is easily demonstrable (State Bank of New South Wales v Chia (2000) 50 NSWLR 587 at p608).