COMMONWEALTH BANK OF AUSTRALIA -v- DINH [No 2] [2019] WASC 456 (17 December 2019)

1. Mr and Ms Dinh are Vietnamese. They are not fluent in English. For the most part, they communicated with the Bank through their son, Andrew Dinh, who is fluent in English and spoken Vietnamese. All of the Bank's documentation was in English. The person at the Bank with whom they were dealing, Mr Pollard, only spoke to them in English.
2. At the time Mr and Ms Dinh entered into the Loan Agreement, they were the registered proprietors as joint tenants of four properties, each of which was subject to a mortgage. The properties were:

(1) 57 Yosemite Loop, Ballajura, mortgaged to the National Australia Bank (NAB) (Ballajura property);

(2) 421 Morley Drive, Dianella, mortgaged to Suncorp‑Metway Ltd (Dianella property);

(3) 21 Balsam Mews, Aveley, mortgaged to SAMsLoans/Perpetual Ltd (Aveley property); and

(4) 270 Landsdale Road, Landsdale, mortgaged to the Bank (Landsdale property).

1. Peter Dinh was also the sole registered proprietor of a property at Unit 75, 996 Hay Street, Perth, mortgaged to the Bank (Perth property).
2. The Loan Agreement[5] provided for the advancement of a total sum of $1,150,000 (Loan Amount) on two accounts:

(1) an overdraft account in the amount of $50,000 to provide working capital for the farming venture; and

(2) a 12‑month bill facility in the amount of $1,100,000 to provide the funds for the purchase of the Plantation (Bill Facility).

1. I will refer to the two accounts collectively as the 'Loan Facility'.
2. Above the signatures of the borrowers in the Loan Agreement, it was written that the borrowers 'further acknowledge that I/we have considered appropriate advice, legal or otherwise, before entering into this Contract'.[6]
3. The obligations incurred by Mr and Ms Dinh under the Loan Agreement were to be secured by, among other things, mortgages over the Dinhs' existing properties and over the Plantation itself.[7]
4. The Bank already had a first registered mortgage over the properties in Perth and Landsdale. The Bank refinanced the three properties which had been mortgaged to other lenders, being the properties in Ballajura, Dianella and Aveley.[8]
5. The Bill Facility, overdraft and mortgages were all on the Bank's usual terms.
6. The Loan Agreement was for a term of one year. Although it was not a written condition in the Loan Agreement, the Bank granted the loan on the basis that three of the Dinhs' properties would be sold during the one year term to reduce the debt load. It was, in effect, a bridging loan.[9] The three properties were the Aveley, Dianella and Landsdale properties. I will refer to these three properties as the 'three investment properties'.

1. Ms Dinh pleads[10] that the Bank breached the Loan Agreement, by breaching cl 2.2, cl 2.1(d) and cl 10.2(b), and cl 25.1 of the Modified Code of Banking Practice 2004 (Code).[11]
2. Clause 2.2 provides:

We will act fairly and reasonably towards you in a consistent and ethical manner. In doing so we will consider your conduct, our conduct and the contract between us.

1. Ms Dinh pleads that the Bank breached cl 2.2 of the Code by:

(1) failing to ensure that she understood the nature and terms of the proposed Loan Facility and mortgages and the nature and effect of a bill facility and an overdraft facility;

(2) failing to allow her an opportunity to take legal or financial advice about the proposed Loan Facility and Mortgages;

(3) failing to comply with the Bank's policy for witnessing documents executed by a person illiterate in English.

We will ... provide information to you in plain language.

The terms and conditions of our banking services will ... be in English and any other language we consider to be appropriate.

1. Ms Dinh pleads that the Bank breached cl 2.1(d) and cl 10.2(b) of the Code by failing to provide information (including but not limited to a translated copy of the documents comprising the Loan Facility and Mortgages) in Vietnamese or with appropriate and sufficient translation and interpretation.
2. Clause 25.1 provides:

Before we offer or give you a credit facility (or increase an existing credit facility), we will exercise the care and skill of a diligent and prudent banker in selecting and applying our credit assessment methods and in forming our opinion about your ability to repay it.

1. Ms Dinh pleads that the Bank breached cl 25.1 of the Code by failing to exercise the care and skill of a diligent and prudent banker in selecting and applying its credit assessment methods to Mr and Ms Dinh and in forming an opinion about their ability to repay the Loan Amount and any other credit facility.
2. Ms Dinh further alleges that the Bank engaged in misleading or deceptive conduct, by making the following representations:

(1) In a meeting prior to granting the Loan Facility, the Bank's agent Mr Pollard represented to Ms Dinh that the Loan Facility would be arranged without additional security (First Representation);

(2) At the same meeting, Mr Pollard, acting with the authority of the Bank, represented to Ms Dinh that the Bank did not require the refinancing of any of her properties (Second Representation);

(3) By offering to provide the Loan Facility, further or alternatively, in arranging the loan accounts, the Bank represented to Ms Dinh that the defendants would be able to service any finance provided to them (Third Representation).

1. Ms Dinh alleged that the Bank's conduct was misleading or deceptive contrary to s 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and s 52 of the Trade Practices Act 1974 (Cth) (TPA).[12] The claim under the TPA was withdrawn.[13]
2. In his closing address, counsel for Ms Dinh advised that the First Representation was not pressed in light of the evidence.[14]
3. Ms Dinh further alleged that the Bank acted unconscionably by making the representations and by breaching the Code.[15] Ms Dinh asserted she was under a disability in that she is a farmer and does not speak or read English.[16] Ms Dinh alleged that the Bank's unconscionable conduct contravened s 12CB[17] of the ASIC Act, s 51AA of the TPA, and the general law.[18] As with the misleading or deceptive conduct claim, the claim of unconscionability under the TPA was withdrawn.[19]
4. As noted earlier, the Bank denies any wrongdoing. The Bank also asserts that Ms Dinh's allegations of misleading or deceptive conduct and unconscionability were time‑barred. The Bank submits that Ms Dinh amended her pleading to raise these allegations after the applicable limitation periods had expired.

1. In relation to the alleged breach of cl 2.2 of the Code, the following issues arise:

(1) Did the Bank fail to ensure that Ms Dinh understood the matters pleaded?

(2) Did the Bank fail to give Ms Dinh the opportunity to obtain legal advice?

(3) Did the Bank fail to comply with its policy for witnessing documents?

1. If the answer to any of these questions is yes, the next question is whether this caused her to suffer a loss. Answering this would require, among other things, an assessment of whether Ms Dinh would have entered into the Loan Agreement anyway.
2. In relation to the alleged breach of cl 2.1(d) and cl 10.2 of the Code, the issue is whether the Bank breached those clauses by not providing information in Vietnamese. Again, if the answer to this is yes, the next question is whether Ms Dinh would have entered into the Loan Agreement anyway.
3. In relation to the alleged breach of cl 25.1 of the Code, the following issues arise:

(1) Did the Bank fail to exercise the care and skill of a diligent and prudent banker in forming its opinion about the Dinhs' ability to repay the loan?

(2) If so, did this cause Ms Dinh to suffer a loss? In this context, the question is whether the Bank would not have offered the loan if it had not breached cl 25.1.

1. In relation to the alleged Second Representation, it was common ground that, if it was made, it was false. The following issues remain:

(2) If so, did Ms Dinh suffer a loss 'by the conduct'? In this context, that involves asking whether she relied on the alleged representation. In other words, if it had not been made, would she still have entered into the Loan Agreement?

1. In relation to the alleged Third Representation the same two issues arise. In addition, because it is an alleged representation as to a future matter, a further issue arises. This is whether, if the alleged representation was made, the Bank had reasonable grounds to make it.
2. In relation to the allegation of unconscionability, the following issues arise:

(1) Did Ms Dinh suffer from a special disadvantage (or special disability) which seriously affected her ability to make a judgment as to her own best interests?

(2) If so, did the Bank unconscientiously take advantage of that special disadvantage?

1. I note that, in evaluating claims of unconscionability, it is necessary to undertake a close analysis of the facts of the case.[20] Where an unconscionability claim is made under the ASIC Act, the analysis must include post‑contractual conduct.[21]
2. The Bank's limitation defence will turn upon whether Ms Dinh's counterclaim is taken to have commenced when the proceedings began. This will depend upon the proper construction of s 81 of the Limitation Act 2005 (WA).
3. Finally, if the transaction documents are not enforceable, it will be necessary to determine the appropriate relief.

1. The Bank primarily relied on its records. The records included emails and what were effectively file notes of telephone conversations, meetings, and planned actions.
2. Mr Pollard gave evidence about how the records were created and the capacity to retrospectively alter some types of records.[22] However, with the exception of one document, it was not put to Mr Pollard that he had altered any of the records or created false records.[23] Accordingly, leaving aside that single document, which I will discuss later,[24] I accept that the Bank's records were created contemporaneously.
3. In addition, very few of the Bank's records were said to be inaccurate. The only records that were challenged were those in which Mr Pollard recorded having a conversation with Peter Dinh.[25] I will discuss those documents later.[26] Excluding those documents for the moment, I accept that the Bank's records accurately reflect the events they record.
4. Ms Dinh gave oral evidence, and called as witnesses her husband Peter Dinh, her son Andrew Dinh and her sister Jenny Lee. The Bank called Mr Pollard as a witness. I deal with my assessment of those witnesses in a subsequent section.

Chronological facts The defendants' property portfolio[27]

1. Mr and Ms Dinh bought their first property in the early 90s. It was 2 Parana Crescent, Beechboro, and was financed by Homeswest. They sold it in 1993.
2. In the late 90s, the Dinhs bought two properties in Benara Road, Morley, numbers 337 and 361. They obtained (at least) construction finance in relation to the property at 361 Benara Road and built a house on that property.
3. In 1999, they purchased the Ballajura property and obtained construction finance from the NAB to build a house on the property. The Dinhs were the owner/builders, entering into a finance contract with AVCO to purchase bricks for that purpose. They ran out of money to finish the house, and re‑financed it in 2001. The Ballajura property became the Dinhs' primary residence.
4. In 2006, the Dinhs purchased the Aveley property, which was then a vacant block of land, financed through SAMsLoans. They built a house on the land with construction finance from the NAB. Ms Dinh gave evidence that the security for the construction finance was the Ballajura property, over which the NAB already had a mortgage, not the Aveley property.
5. In 2007, they bought the Dianella property, financed by Suncorp‑Metway. It was also a vacant block of land.
6. Again in 2007, the Dinhs[28] also bought the Perth property, financed by the Bank.
7. Still in 2007, they bought the Landsdale property, which was then a vacant block of land, financed by the Bank. Ms Dinh said that she and her husband bought the block for her son Yuong Dinh because their son was unable to borrow the money. In 2008, Mr and Ms Dinh obtained further finance to construct a house on the land.
8. In 2008, Ms Dinh purchased 13 Prospector Loop, Bassendean, (Bassendean property) in her Vietnamese name, financed through the Bank. Her evidence was that she sold this to fund the purchase of the Plantation, but she ceased being the registered proprietor in December 2009, well after the Plantation was purchased.[29]
9. As noted earlier, at the time Mr and Ms Dinh entered into the Loan Agreement, they were the registered proprietors as joint tenants of four of those properties, being the Ballajura, Dianella, Aveley and Landsdale properties. Peter Dinh was also the sole registered proprietor of the Perth property. Each property was subject to a mortgage.

1. From about 2002 up to their purchase of the Plantation, Mr and Ms Dinh farmed leased land in Carnarvon.
2. For the first year, they worked as share farmers with Ms Dinh's brother. Ms Dinh's role was simply to provide labour.
3. After that, they leased land at 720 South River Road, with Ms Dinh's sister Ms Lee. The Dinhs farmed that land with Ms Dinh's two sisters and their husbands. Then they leased and farmed land at North River Road.
4. Ms Dinh's main job on both of those farms was looking after the books and paying the bills.

1. Mr and Ms Dinh wanted to be able to farm on their own land. In late 2007, they approached the ANZ bank for a loan to purchase the Plantation, but were told they had too much debt. Ms Dinh said they were told 'to go back and sell whatever we own so that then they will be able to lend us the money to buy that property'.[31]

Approach to the Bank - the Carnarvon meeting in November 2008

1. There was considerable confusion among the witnesses as to the dates and sequence of the various meetings between the Dinhs and Mr Pollard. However, various documents permitted inferences to be drawn. Ultimately, the parties were largely in agreement as to what the proper sequence was.
2. The relevant sequence of events began with a meeting in the Bank office in Carnarvon.
3. Like Mr and Ms Dinh, Ms Dinh's sister Ms Lee wanted to buy her own land to farm. Ms Lee was dealing with Mr Pollard of the Bank about a loan to enable her to do this. She suggested to her sister Ms Dinh that she attend a meeting Ms Lee had with Mr Pollard to see if the Bank would be willing to lend Mr and Ms Dinh the money to buy the Plantation.
4. The meeting was probably in November 2008, and was before 21 November 2008.[32]
5. It is clear that Ms Dinh, her husband, and her sister Ms Lee were at the meeting. It is not clear whether her son Andrew Dinh was too. Either her sister or her son translated for Ms Dinh. Ms Lee speaks better English than Ms Dinh does.[33] Her son is fluent in English and spoken Vietnamese.[34]
6. In the meeting, Mr Pollard asked Ms Dinh what assets they had.[35] Ms Dinh gave evidence that she told him (she said through her sister, but it may have been her son), that they owned a property in Landsdale and in Perth.[36] She did not tell him about their other properties.
7. Peter Dinh said that Mr Pollard asked them to sign some documents during this first meeting. He said that Mr Pollard had told them, through his son, that they were documents that would allow the Bank to make inquiries to check their credit to determine whether they would be able to borrow money.[37] He said that, when his son told him that, he signed the documents.[38]
8. Ms Dinh said that, after the meeting, they waited for Mr Pollard to complete the documentation.[39]
9. Mr Pollard said that the Dinhs seemed very enthusiastic about buying the Plantation.[40]

1. After the meeting, Mr Pollard sought financial records from the Dinhs' accountant. He also requested title searches on the Ballajura, Dianella, Aveley and Perth properties.[41]
2. On 21 November 2008, Mr Pollard began work on the Dinhs' loan application.[42] I will say more about this later.[43]

The conversation about undisclosed properties - November[44]

1. Ms Dinh said that, after the initial meeting, Mr Pollard telephoned them. Her husband took the call. She said that her husband has a problem with his hearing, so he passed the phone to their son Andrew Dinh.[45]
2. Ms Dinh said that her son spoke English to Mr Pollard and then spoke to her while he was still on the phone. She said that her son asked her why she had not told Mr Pollard that they owned other properties in addition to the ones she had told Mr Pollard about. Ms Dinh said she told her son to reply to Mr Pollard 'that we would like to sell those assets so we can have the money to buy the - that market garden farm'. She said that her son then spoke in English down the phone and then told her that Mr Pollard had said 'you don't need to sell these assets, this property in order to have the money to buy the market garden farm'. She said that Mr Pollard made an appointment with her, through her son, for about two weeks later.[46]
3. Andrew Dinh thought that they had told Mr Pollard about all of the properties in the first meeting. Although it seems he was wrong about that, his evidence may provide an alternative explanation as to why his mother may have been reluctant to tell Mr Pollard about all of their properties. He said 'Jenny had owed my mum some money for a personal loan. So my mum didn't want Jenny to know the extent of her portfolio. So - but then Paul had requested it and Jenny was there so we had to disclose it in front of Jenny, which I don't think my parents ...'.[47] The witness was then stopped by counsel for Ms Dinh.

More information sought, and provided, via Andrew Dinh

1. On 24 November 2008, Mr Pollard sent an email to Andrew Dinh asking for more information to allow the Bank to assess the loan. Among other things, Mr Pollard asked for 12 months of loan statements in relation to the home loans with the other lenders.[48] Andrew Dinh responded the next day,[49] advising that he would forward the request to his parents and update Mr Pollard with any information he could. In his evidence, Andrew Dinh explained that he was in Perth at the time and the documents that were needed were with his parents in Carnarvon. Andrew Dinh said that he told his mother what Mr Pollard had requested and told her to forward the documents to Mr Pollard.[50]

A second meeting with the Bank, this time in Perth - late 2008

1. Sometime after this exchange, the parties met again. This meeting was in the Bank's Perth office. It was before 2 January 2009.[51]
2. Ms Dinh said that she went to the meeting with her husband, their son Andrew Dinh, and her sister Ms Lee. She said that her son was there so that he could ask questions regarding the details of the application for the loan.[52]
3. Ms Dinh said that Mr Pollard said 'we can have the loan payable within 16 years and interest rates charged was 12.9%'. She was asked what her response had been. She said 'when I work out roughly ‑ so I, when I heard that the proposed loan was about $1.1 million and if interest rates were 12.9%, so roughly we have to pay over $10,000 per month, that is really beyond our ability to repay. So, we didn't say anything but just went back ... went out of ... the meeting room. About to reach the door and Mr Paul Pollard asks us to wait a second. He will consult with someone else'.[53]
4. Ms Dinh said Mr Pollard then left the room and reappeared after about 20 minutes. She said that Mr Pollard said, through her son, 'the bank will attempt to lend the money, for one year the interest ‑ the interest rate applicable was 3.4%'. She said she asked Mr Pollard, through her son, roughly how much they would have to repay every month with that interest rate. She said that Mr Pollard replied 'roughly, about five to six thousand'. She said that Mr Pollard said 'we apply this rate ‑ this arrangement for one year. After one year if you don't like it, you can change the financial institution, or you can refinance'.[54]
5. Mr Pollard's estimate of the monthly repayments was accurate.[55]
6. Ms Dinh said she had thought at the time that it was within their ability to make the repayments.[56]
7. Ms Dinh said that Mr Pollard then proposed that they transfer all of their property to the Bank. She said that she told her son to tell Mr Pollard 'we do - do not want this arrangement because it will cost us money. We just wait for us to sell the properties and then for us to have money to buy - enough money to buy that market garden farm'.[57] She later said 'I understood that if we were to transfer our assets to the Commonwealth Bank, then it will cost us the - the fees for transfer doing such transfer and also Mr Sang Nguyen[58] also told us that it is better to apply ... for loans that - in different institution, that ... is safer and cheaper'.[59]
8. Andrew Dinh did not give evidence that his mother had said this or asked him to tell Mr Pollard this. It was not put to Mr Pollard in cross‑examination that he was told this.[60]
9. I accept the submission of Ms Dinh's counsel that it may be inferred that Andrew Dinh did translate all relevant statements made by his mother and Mr Pollard.[61] However, I am not satisfied that Ms Dinh asked her son to say this to Mr Pollard. As I later explain,[62] I do not accept her evidence. In any event, Ms Dinh knew, before she signed the Loan Agreement, that the Bank would be refinancing the loans to the other lenders and taking security over all of their properties.[63]
10. Ms Dinh pleads that Mr Pollard also said in this meeting that additional security, other than a mortgage over the Plantation, would not be required. However, there was no evidence that he said this and therefore no basis upon which I could find that he did.[64]
11. Ms Dinh said that Mr Pollard said the loan could be up to $1.1 million and with a $50,000 overdraft. She was asked if she knew what an overdraft was. She said 'yes. So, Mr Paul Pollard explained that the overdraft account means that the $50,000 in there, you will use it when you need and the rates - the rates applicable for that account is 20.9%'.[65]
12. Ms Dinh also gave evidence of events that she thought had occurred a few days after the Perth meeting. She said that Mr Pollard came to their Ballajura home with documents for them to sign. It appeared she was saying that these were the transaction documents. If so, she was clearly mistaken about that.[66] However, her evidence of what she understood she was agreeing to remains relevant.
13. Ms Dinh said 'I understood mainly that we borrow an amount of money within a year with 3.4% applicable rates - interest rate'. She said 'my son translated that information to me. I did - I was careful in confirming this information and then where I know that it is - what it was, then I will sign. I did sign that - that form'.[67]
14. She was asked what she understood about the security for the loan. She said (emphasis added):[68]

I ‑ what I understood at that point in time, that Mr Paul Pollard told us that we do not need to sell anything, and I agree on his terms that I borrow that amount of money for one year with 3.4% rate.

... What I intended ‑ what I understood at that point in time was when he first said 12.8%. That's too high. That's beyond our ability for the repayment. And then he ‑ next his proposal was that lending the money for one year, the rate is 3.4%, then we have some time for us to sell ‑ to sell our assets in order to make the repayment. What I understood from that ‑ our position at that point in time.

1. Counsel for the Bank submitted that, on Ms Dinh's own evidence, Ms Dinh clearly understood that they needed to sell their other properties within the year. As I explain later, I accept this submission.[69]
2. Ms Dinh also said[70] that she understood that she needed to pay $5,000 to $6,000 monthly to the Bank 'and then after one year there will be change'.

1. Ms Dinh gave evidence that, during this Perth meeting, she told Mr Pollard that she had borrowed $50,000 from a bank for her sister Ms Lee, as her sister was unable to make the necessary repayments.
2. Her evidence about this was very unclear.[71] However, having regard to other evidence, the following seems likely.
3. Ms Dinh had, some years before, borrowed $50,000 from the NAB for her sister, effectively lending her sister that sum. At some point prior to the settlement of the Plantation, Ms Dinh told Mr Pollard about the loan she had given to her sister (and possibly told him that she had borrowed money from the NAB to fund the loan). When he was told about it, Mr Pollard asked Ms Lee to repay the money (and possibly told Ms Dinh to repay the loan to the NAB). Ms Lee did not repay the money at that time. It appears that, sometime after settlement, she repaid $30,000. The balance of $20,000 remains unpaid.
4. It appears that, because Ms Lee did not repay the money before settlement, the Dinhs instead sought a loan from one of their agents. This was around 19 March 2009, the day before settlement. The loan was sought on the basis that it would be repaid from the proceeds of sale from watermelons that the Dinhs said were ready to be picked at that time. The agent deposited $30,000 into the overdraft account on 20 March 2009.[72]

1. 'The PD & AD Family Trust' was set up by deed dated 27 November 2008 (Trust Deed).[73] Ms Dinh gave evidence that she and her husband set it up on advice from their accountant. She said that their accountant told them it was advantageous to set up the business that way.[74] Ms Dinh's accountant speaks Vietnamese and communicates with her in that language.
2. However, later in her evidence, Ms Dinh claimed that Mr Pollard had told her through her son that they would not be able to borrow the money to buy the farm in their current circumstances. The effect of her evidence was that Mr Pollard told them that if they set up the trust they would be able to buy the farm.[75] This is inherently implausible and I do not accept it. Ms Dinh gave other implausible evidence as to Mr Pollard's involvement in the contract for the sale of the land and the settlement.[76] It appeared that Ms Dinh wanted to present a picture that everything happened because she simply did whatever Mr Pollard told her to do, and that she was not doing anything independently of him.

The Bank advises securities on the other properties will be required - 2 January 2009

1. Ms Dinh claimed that she did not know that the Bank intended to take securities over all of their properties. She claimed that she only found out when the first of those properties was sold, in May 2010.
2. Mr Pollard was asked if he ever had a conversation with Mr or Ms Dinh about the security that the Bank would be taking if the loan was granted. He said:[77]

I did. I think we had a conversation with Peter which then I spoke with Andrew later on via an email, just explaining we - we had to - we would do it on the basis of on that bridging - bridging term because clearly we couldn't show servicing without doing the bridging. So the properties had to be taken and they had to be sold which was - was fine. They were already looking to offload those properties to then buy the plantation.

1. Bearing out his recollection, Mr Pollard did send such an email to Andrew Dinh. This was on 2 January 2009:[78]

I [s]poke with your dad this morning to explain that if we approve finance we will take security over all the relative security properties.

Therefore I have attached 2 title searches to explain what encumbrances are on these. After [s]peaking with Peter, I will need to determine if these encumbrances should still be there and how to remove them off the title.

You will probably need to liaise with [Landgate] to investigate them and seek removal of them.

Any [p]robs please give me a call.

1. Peter Dinh denied speaking to Mr Pollard on 2 January 2009. He said that his English was quite poor so Mr Pollard never talked to him personally.[79]
2. I am satisfied that Mr Pollard did speak with Peter Dinh that morning. As I will explain,[80] I do not accept Peter Dinh's English was as bad as he claimed. He was also an unsatisfactory witness.[81] Further, it is inherently unlikely that Mr Pollard would record in an email to Andrew Dinh that he had had a discussion with Peter Dinh if Peter Dinh's English skills would have made that impossible.
3. Andrew Dinh said that he did not know what an encumbrance was at the time of that email, so he rang 'Irene' to find out. This was Irene Casella, the family's settlement agent. Ms Casella worked at Settlements Plus.[82]
4. On 15 January 2009, Andrew Dinh emailed Mr Pollard:[83]

Hi Paul, [a]s per phone conversation, [I] want to inform you that all [c]aveats on both properties have begun process and should be remove[d] successfully in due for further progress with our application. I am requesting the loan statements and should have most of them if not all tomorrow. [I]'ll be in contact with yourself prior to the week end so you can relax on your holiday. [T]hanks heaps for your valuable help in assisting us in our application.

1. Andrew Dinh admitted that he knew, at least by this date, that the caveats had to be removed from the properties in order for the loan to go through.[84]
2. Andrew Dinh said that Ms Casella helped his parents to get the caveats removed. He said he was sure that his mother was involved in that process.[85]
3. In light of this evidence, I find that Ms Dinh was aware, in January 2009, that the Bank would only lend them the money to buy the Plantation on the basis that the Bank would take securities over all of their properties. As I will later explain,[86] I find that Andrew Dinh did pass on, and translate, to his parents, primarily his mother, messages from Mr Pollard. Further, as will be seen, the Dinhs signed documents that made it plain that the Bank intended to take securities over the properties which were mortgaged by other lenders and indeed intended to refinance them.[87] Further, the Loan Agreement itself set out that securities would be taken over each of the properties.[88]

The loan is conditionally approved - 2 January 2009

1. Later that day, the Bank gave conditional approval for the loan, subject to, among other things, valuations of the Dinhs' other properties.

Meeting in Ballajura - a date between 2 January and 12 February 2009

1. Peter Dinh gave evidence that Mr Pollard attended their Ballajura home and told them that they would be able to borrow money to buy the farm. From the other events that occurred, it appears this must have been after 2 January 2009 and before 12 February 2009.[89] Peter Dinh said that Mr Pollard explained some documents and his son translated the explanation.[90]
2. Peter Dinh said that he spoke to his wife in Vietnamese, swearing and saying he did not want to buy the farm. He said that he told Mr Pollard, through Andrew, that the ANZ had already refused the loan so how was it that the Bank was able to make it happen. Peter Dinh said that Mr Pollard did not respond and he, Peter Dinh, was not happy and walked out. He said Mr Pollard spoke to his son Andrew Dinh and asked them to sign some documents. Peter Dinh agreed that he had signed the documents but said 'I was not happy, but I just want to finish it, to get it over it, I signed it'.[91]
3. In cross‑examination, Peter Dinh agreed he had not wanted more debt and had told his wife that. He agreed he was annoyed with his wife.[92]

1. The Dinhs took possession of the Plantation on 4 January 2009, before settlement.[93] Ms Dinh said they knew there was a risk that, if they did not get the money from the Bank, they would have to move off the Plantation.

1. The contract for the sale of land for the Plantation was dated 10 January 2009.[94]
2. In cross‑examination, Ms Dinh agreed there was no real estate agent involved. The owner of the Plantation was an English speaker. It was put to Ms Dinh that she and her husband had made the contract with the seller. She replied 'Paul Pollard show me what - show us what to do'.[95] Ms Dinh then conceded that Mr Pollard had done nothing other than tell them how much they would be able to borrow.[96]

The loan is approved on a revised basis - 16 January 2009

1. As required by the conditional approval, Mr Pollard obtained valuations of the Dinhs' other properties. The valuations were lower than his estimates. As a result, he had to resubmit the application.[97]
2. On 16 January 2009, in a revised credit analysis, Robert Morris, a credit officer, determined that the home loans would need to be for 12 months and interest only.[98]

Signing documents to refinance loans to other lenders - 5 February 2009

1. On 5 February 2009, the Bank issued 'Consumer Loan Authorities' which, when signed, would authorise the Bank to pay out the NAB loan on the Ballajura property and the Suncorp‑Metway loan on the Dianella property. Mr and Ms Dinh signed those documents.[99] It is not known precisely when they signed these documents, but it is likely to have been before 12 February 2009, when the documents next discussed were received by the Bank.
2. On the same day, the Bank issued 'Consumer Credit Contract Schedules' setting out the terms of the home loans between the Bank and the Dinhs in relation to the Ballajura, Dianella and Aveley properties. Each stated there were to be 11 months of interest only payments followed by repayment of the full amount. Mr and Ms Dinh signed those documents.[100] It is not known precisely when they signed these documents, however the documents were received by the Bank on 12 February 2009.
3. These documents appear to have been sent to the Dinhs prior to their meeting with Mr Pollard when they signed the first version of the Loan Agreement, discussed below.[101] Mr Pollard explained that he did not have anything to do with the home loan documentation and that these documents were dealt with by a different section of the Bank, in the Carnarvon branch.[102]

1. Ms Dinh agreed she and her husband had signed a document appointing Settlements Plus as their settlement agents in relation to the Plantation.[103] Ms Dinh said she had not read the document and had just signed it. She said she had not asked her settlement agent Ms Casella to explain the document in English. Ms Dinh said that Ms Casella's job was just to do the property transfer.[104]

Gateway Hotel - the first signing of transaction documents - 12 February 2009

1. On 12 February 2009, Mr Pollard met with Ms Dinh, Peter Dinh, Andrew Dinh, Ms Lee and Ms Lee's husband. Mr Pollard was staying at the Gateway Hotel in Carnarvon and they met him there. Mr Pollard intended to get the transaction documents signed by the Dinhs.
2. At this meeting, Mr and Ms Dinh signed various documents, including a version[105] of the Loan Agreement and the Mortgages (being the mortgages on the Plantation, the Ballajura property and the Dianella property).[106]
3. Each of the Mortgages incorporated the terms set out in the Memorandum of Common Provisions J584291[107] which had been registered at Landgate.[108] The Dinhs had previously entered into mortgages with the Bank on these same terms.[109]
4. The home loan documents for the various properties were not signed during this meeting. As previously mentioned, Mr Pollard explained that he was not involved with the home loans and that they were dealt with by a different section of the Bank.[110]
5. Peter Dinh's evidence of this meeting was limited. He said he asked Mr Pollard what the documents were before he signed them. He said Mr Pollard said 'they're just normal'. Counsel then asked Mr Dinh 'Did he say normal for what?' Mr Dinh replied 'That's all - yes - normal like the one I signed before, but I don't know what it - it is'. He said he did not understand what the documents were about.[111]
6. Ms Dinh and her son Andrew Dinh gave more detailed evidence of this meeting. There were some differences in their evidence. However, both said that Mr Pollard presented Mr and Ms Dinh with a pile of documents for them to sign, with arrow stickers showing where signatures were required. Both said that Mr and Ms Dinh signed the documents without reading them or having them translated to them.
7. Andrew Dinh said that Mr Pollard produced the documents, and his parents signed them, before they all ate dinner together. He said Mr Pollard said they were the documents for the farm. Andrew Dinh said that he did not translate the documents to his parents. He said that Mr Pollard then gave them an envelope which Mr Pollard said were copies of the documents. Andrew Dinh said that the thickness of the envelope was the equivalent of about 350 pages.[112]

1. Ms Dinh gave evidence that they intended to have dinner with Mr Pollard but he had already eaten by the time they got there. She appeared to be saying that Mr Pollard sat with them, with her son doing most of the talking, while the Dinhs ate dinner. Ms Dinh said that, after dinner, she and her sister had come out of the toilets and were going to leave. She said she saw Mr Pollard, her husband, her sister's husband and her son already standing at the door. She said that her son told her that Mr Pollard was waiting for her to come out so that she could sign the documents that would provide an overdraft. Ms Dinh was asked if the documents were read to her by her son in Vietnamese. She said 'No. No. It was near closing time. So we need to do it quickly to - to leave'.[113]
2. Ms Dinh said:

What I saw that Mr Pollard handover, he - stack of documents, and he did ask me to sign. And then there was a lot of - for signature to be signed. So I said to my son, it's just a simple overdraft. How come I have to sign so many documents?[114]

1. Ms Dinh said that Mr Pollard answered that 'this is the standard documentation of the bank. Everyone has to do the same. It's nothing - nothing important. Just sign it'.[115]
2. Ms Dinh said that, after she had signed the 'stack of paper', Mr Pollard gave her another stack of paper to keep, but that it was not as thick as the stack she signed.[116]
3. Ms Dinh said that they were dealing with the documents for 10 minutes at the most. Ms Dinh was asked if she was able to check that the documents Mr Pollard gave her were copies of the same documents that she had signed. She replied:[117]

Yes, yes. I - I never thought about anything else. He always told us that, 'you are a good couple. Yes. Good and hardworking people'. So my intention is always to help him. So I really trust him. I - I - I would sign the documents that he asked me.

1. Ms Dinh was then reminded that the question was whether she checked whether the documents she had been given were the copies of the ones that she had signed or whether they were other documents. She replied 'no. Absolutely not, because I don't read English. I don't read English that well to - to check that'.[118]

1. By her response to the question whether Andrew Dinh had translated the documents to her, Ms Dinh said, in effect, that the reason he had not was because they had to sign the transaction documents quickly, because it was near closing time and they had to leave. I do not accept that this was the reason.
2. First, there were many other documents that Ms Dinh signed that she said she did not ask her son to translate, in circumstances where there was no immediate time pressure or any other reason why it was not practical for him to translate. Indeed, her evidence was to the effect that her son did not translate any of the significant documents. These included the settlement documents from Ms Casella which were faxed to her son's work number.[119]
3. Second, I do not accept her evidence that the documents were signed at the end of the evening. It was inconsistent with Andrew Dinh's evidence that the documents were signed before dinner. I prefer his evidence to hers.[120]
4. Third, although Mr Pollard intended to get the relevant loan documents signed by the Dinhs that night, there was no reason why he would have pressured the Dinhs into signing the documents quickly. Mr Pollard gave evidence that it would not have caused the Bank any difficulty at all if the loan documents had not been signed in February.[121] The defence did not seriously contend that there was any reason why it would have caused the Bank any problems.[122]
5. In my view, in giving this evidence, Ms Dinh was seeking to give the false impression that she had no opportunity to find out what the documents said.
6. Further, in my view, by her evidence in relation to whether she had checked that the copies she was given were copies of the documents she had signed, Ms Dinh was also seeking to give the false impression that she had no capacity to check this because she could not speak English. I do not accept that she had no capacity to check this when her son, a fluent English speaker and reader, was with her.
7. Ms Dinh also appeared to be suggesting, by her evidence that Mr Pollard gave her a stack of paper to keep that was not as thick as the stack she signed, that she was not given copies of all of the documents she had signed. Her son Andrew Dinh's evidence did not appear to support this[123] and her counsel did not seek to argue in his closing that she was not given copies of the documents she signed.[124] In any event, even if Ms Dinh was given a thinner bundle, this would not demonstrate she was not given copies of what she signed. Mr Pollard gave evidence that the Bank kept multiple copies of certain documents. I am satisfied that Mr Pollard gave her a copy of each document that she signed.
8. In my view, in giving the answer extracted above which included the statements 'So my intention is always to help him. So I really trust him. I ‑ I ‑ I would sign the documents that he asked me', Ms Dinh was seeking to give the false impression that she would blindly sign documents presented to her by Mr Pollard because she trusted him. This is not consistent with her evidence that she asked her son why she had to sign so many documents when it was 'just a simple overdraft'. In my view, it is also implausible in light of other evidence. In particular, the evidence in relation to Mr and Ms Dinh's development of a property portfolio,[125] the various resources they used[126] and Ms Dinh's knowledge and experience in financial matters.[127]

1. Ms Dinh said that the only explanation Mr Pollard gave her about the documents was that they needed to sign them in order to complete the transaction to buy the Plantation.[128]
2. Mr Pollard no longer has a memory of this meeting. However, he gave evidence of his usual practice where customers are going to sign loan documents:[129]

So I would provide - the letter of offer has the majority of the information, so I would go through what the products are, what are we looking at doing, what the relevant security is and, sorry, going back, with the products, you know, interest rates, anything that was - was relevant terms, etcetera. So [I] would just briefly go through the document. Then we would go to explain what the securities were and then if there's any conditions of funding or either post-funding or prior to funding, you know, what they are on there. Then I would - so once - that I guess sets the context. After I've done that, then I would go through. There's the mortgages. I would explain, "These are the mortgages. These are what link the properties to the loan and this is obviously what the bank has, you know, to effect its security." The same with equitable charges, the equitable charges with the water licences. ... So yes, so any of the relevant stuff I would briefly explain what they were and how they are linked to the - to the loan.

1. Mr Pollard said that, if a customer wanted greater detail, he would tell them to seek independent advice.[130]
2. Mr Pollard said that, if a customer expressed reservations about signing documents, he would tell them to take the documents away and get them checked out with whoever they wanted or to go through them or have a think about them and then come back.[131]
3. He said this was his normal practice in 2009 and that he had no reason to think he would not have followed it on this occasion.[132]
4. I find that Mr Pollard followed his usual practice of providing a simple explanation of the terms of the agreement. As will be seen, I find Mr Pollard to have been a truthful and reliable witness.[133] In addition, Ms Dinh's evidence supports Mr Pollard's evidence that he did give explanations. She was asked if she knew what an overdraft was. She said 'yes. So, Mr Paul Pollard explained that the overdraft account means that the $50,000 in there, you will use it when you need and the rates - the rates applicable for that account is 20.9%'.[134] While this was her recollection and summary of what she had been told, and she was wrong about the rate,[135] her evidence supports that, at some stage, Mr Pollard did explain at least this component of the loan.

The re-signing of the loan agreement - 4 March 2009

1. Due to an issue in relation to water licences, it was necessary to amend the loan agreement documentation and have it re‑signed.[136] The final version of the Loan Agreement was signed on 4 March 2009.[137] The version that had been signed at the Gateway Hotel was not in evidence. However, there was no suggestion that it differed from the final version, other than in relation to the water licences.
2. The terms of the Loan Agreement were set out earlier, in the Background section of these reasons.

1. Shortly before settlement, Ms Casella, the settlement agent, asked the Dinhs for the stamp duty fee. It was $47,765.50. Andrew Dinh gave evidence that the Dinhs did not have that amount of money and could not borrow it. He said he contacted Mr Pollard who dispersed the money from the overdraft.[138]
2. Mr Pollard explained that Andrew Dinh had contacted him when he, Mr Pollard, was 'on the road'. Mr Pollard gave Andrew Dinh verbal approval and then told his analyst, Shellice Regan, that he had done so, and asked her to put a temporary extension on the overdraft. Ms Regan made a 'call report' note on the system to record this, dating it 16 March 2009:[139]

Paul Pollard called and advised Peter and Anne Dinh require stamp duty prior to settlement which is booked in for the 19th of March. Paul has verbally approved a Temporary Excess limit of $50k to be place[d] on account 6000 1127 4073. Clearance is to come from watermelon sales which are expected in within 30 days. Watermelon picking will commence next week, delayed due to poor weather.

1. Subsequently, Mr Pollard added a note to the call report to explain his decision. Mr Pollard's addition is shown as the top part of the same note and states (typographical errors corrected):[140]

Added by Paul Pollard on 18/03/2009 11:11:25 AM

Andrew, Peter's son phoned me to advise that they have approx 3000 water melon plants in, each with approx 2-3 watermelons upwards of 30kg each. Conservatively assuming an average weight of 15kg per water melon at 2 melons per plant at even $0.70/kg (which is another reason for the delayed picking. Prices have been in excess of $1/kg previously and are predicted to go back to this once supply dips off).

Andrew was going to send an email however has had some computer problems.

I will approve a temp facility for 30 days for $50,000 with clearance to come from the watermelon sales.

1. In his evidence, Andrew Dinh acknowledged that he had had a conversation with Mr Pollard about the stamp duty and had given Mr Pollard information about watermelons growing on the property. However, he said he did not remember speaking to Mr Pollard about the specific numbers, and said he would not have known them off the top of his head to tell Mr Pollard. He also said he did not think that there were watermelons ready to be picked in March. He said that generally they would plant watermelons in July and they would be ready to be picked three months later. He then said he did not remember talking with Mr Pollard about watermelons.[141]
2. Mr Pollard said that the call report was accurate to the best of his knowledge.[142] It was put to Mr Pollard in cross‑examination that Andrew Dinh had not given him the details about watermelon pricing. Mr Pollard said that Andrew Dinh had given him that information.[143]
3. It was then put, somewhat inconsistently with the first proposition, that Mr Pollard had been effectively coaching Andrew Dinh on what he needed to say.[144] Mr Pollard agreed he explained to Andrew Dinh the information he needed. He said:[145]

So when clients require temporary overdraft, that's - that's what - that's my general - my general course of action. So I asked for the - what they need it for, how long are they needing it, why they need it and when it was going to be - how it was going to be cleared.

1. Mr Pollard was asked if he had taken any steps to verify that the details Andrew Dinh had given him were correct. He said that they sounded reasonable based on discussions he had had with other growers around town.[146]
2. The effect of Mr Pollard's approval of a temporary excess limit of $50,000 was to increase the overdraft limit to $100,000 until 15 April 2009. After that date, the increase would 'drop off', making the limit again $50,000 unless a further temporary extension was granted.[147]
3. I find that Andrew Dinh did give Mr Pollard the information Mr Pollard recorded in the call report, for the following reasons.
4. First, as will be seen,[148] shortly after Andrew Dinh contacted Mr Pollard about the stamp duty, a letter was sent on behalf of Peter Dinh to one of the Dinhs' agents, seeking a loan. The letter was dated 19 March 2009, three days after Andrew Dinh called Mr Pollard to ask for an extension. The letter advised, in English, that the Dinhs had 'watermelons in the ground which are ready to be picked, we spoke to you about it and you suggested it would return better prices in a week or so, therefore we are preparing to pick it early next week'. From the evidence, it appears that the letter was written by Andrew Dinh. Accordingly, either there were watermelons ready to be picked in mid‑March, or Andrew Dinh was willing to tell people this in order to borrow money.
5. Second, as will be seen,[149] on 22 April 2009, Mr Pollard attended the Plantation and was told that 'the first batch' of watermelons had been sold. He also saw a second patch of watermelons and was told this was expected to generate approximately $37,000 within 30 days.
6. Third, there was no reason why Mr Pollard would make this up.
7. Fourth, to the extent that there were differences between the evidence of Mr Pollard and Andrew Dinh, I prefer Mr Pollard's evidence.[150]

1. On 18 March 2009, Ms Casella faxed a letter to the Dinhs (Settlement Letter), attaching a Settlement Statement and an Authority to Proceed to Settlement form.[151] The documents (collectively, the 'settlement documents') were faxed to Andrew Dinh's business, HTD Manufacturers, on 18 (and 19) March 2009. Andrew Dinh said that the fax machine was in Perth and so he and his mother would have gone down to Perth to get the documents.[152]
2. Ms Dinh agreed she and her husband signed the Settlement Statement and Authority to Proceed to Settlement forms.[153]
3. In the Settlement Letter, Ms Casella confirmed that, further to a conversation with Andrew Dinh, settlement would be on 19 March 2009. She noted that penalty interest would be charged for the late settlement. She noted that attempts had been made to settle earlier, but the Bank 'was not able to arrange all the discharging banks to effect settlement any earlier due to the National Australia Bank not being ready on your behalf prior to the 19th March, 2009. We understand there are 6 parties involved on your behalf for this transaction'.
4. In the Settlement Statement, it was noted that, due to the late settlement, penalty interest of $9,493.05 had to be paid.
5. In the Authority to Proceed to Settlement document,[154] the Dinhs were required to 'acknowledge that Settlements Plus has recommended Legal Advice be received. We confirm we wish settlement to proceed'.
6. Ms Dinh said that her son Andrew Dinh did not explain to her what was in the settlement documents and she did not ask him to explain before she signed them. She said that her son did not tell her that the Authority to Proceed to Settlement document said that Settlements Plus had recommended she get legal advice.[155]
7. Andrew Dinh's evidence was different, although very general. He said he talked to his parents about the fax and agreed he would have explained to them what it said.[156]
8. The Bank relied upon these settlement documents in two respects.
9. First, the Bank submitted that they showed Ms Dinh had been told to get legal advice, but she had chosen not to do so. While I accept that Andrew Dinh would have explained to his parents what the documents were about, it is possible his explanation did not include this level of detail. He was not asked if he had explained specific matters. It is unnecessary to consider this further as I am satisfied that Ms Dinh was well aware that she could obtain legal advice.[157]
10. Second, the Bank submitted that the settlement documents showed that both Ms Dinh and Andrew Dinh had to have known, prior to the settlement, that the Bank was refinancing the loans from the other lenders. I will discuss this in more detail later.[158]

Peter Dinh seeks a loan from one of his agents - 19 March 2009

1. In March 2009, Peter Dinh asked a company called EPT for a loan. EPT was one of the agents the Dinhs used for the produce they grew. A letter dated 19 March 2009 was sent seeking the loan. It purported to be signed by Peter Dinh and its contents indicated it was written by or on behalf of Peter Dinh. Peter Dinh said he thought his son had written the letter and that the signature, which purported to be his, was not his signature. He then said he could not remember if he or his son signed it. However, he did admit a letter was sent.[159]
2. The letter stated:[160]

I am in a bit of financial strife at this very moment with the purchase of my new plantation. As the stamp duty and fees was very extent, [I] have not allocated enough funds to cover for settlement which is due at 12:15PM tomorrow.

I seek to you [to] see if you can ask your business partners if EPT are able to help us with the shortages which we need to settle tomorrow.

The amount we are short is approx $39,000.00. We come to you as basically you['re] the only one that [I] have a close relationship with and the one we send most of our produce to. If EPT is able to assist me with the short funds, [I] would be very relie[v]ed and [I] will endeavour to make sure that the amount will be repaid as soon as possible, in which we have watermelons in the ground which are ready to be picked, we spoke to you about it and you suggested it would return better prices in a week or so, therefore we are preparing to pick it early next week and will use the proceeds of sales to return the money to EPT.

The [m]oney will be used to settle a home loan with National Australia Bank and could you transfer the funds to our Commonwealth Business Account in which tomor[r]ow at set[t]lement the bank will draw the funds.

Our anticipated return time for this advance by EPT is whol[ly] upon EPT with our produce sales but we will have produce sent to you during next week, as you have supplied me with bins for watermelons. My produce is only going to EPT so we can continue our business relationship and advance.

[The letter then set out the account number for the overdraft.]

1. Peter Dinh said that EPT lent him the money.[161] The overdraft statement records that a deposit of $30,000 was made by 'The Directors EPT No' on 20 March 2009.

1. Ms Dinh claims that she was told by the owner of the Plantation Mr Wainwright that, if the settlement could not be completed by 18 March 2009, she would be fined $10,000 a day.[162]
2. Ms Dinh said that Mr Pollard brought documents to her in Carnarvon on 18 March 2009. She said she knew only that she needed to sign 'the documents for the transfer of the land'. By this, Ms Dinh appeared to be asserting that Mr Pollard had brought the transfer of land document for her to sign. Ms Dinh said her sister Ms Lee was also present on this occasion.[163]
3. It is certainly possible that Mr Pollard did attend at the Plantation around this time. However, I do not accept that he brought with him the transfer of land document for her to sign. His unchallenged evidence was that he was not involved in the purchase of the Plantation.[164]
4. Settlement on the Plantation occurred on 20 March 2009.[165]

1. As noted earlier, the temporary extension granted by Mr Pollard expired on 15 April 2009. On that date, the overdraft limit reverted to $50,000. The Dinhs had not brought the overdraft back under the limit. As will be seen, the Dinhs told Mr Pollard that this was for two reasons. First, because the family loans that they expected to be repaid had not been repaid. Second, because the proceeds of the watermelon sales that the Dinhs had told Mr Pollard would rectify the account had been given to EPT to repay the loan EPT had given the Dinhs.
2. On 21 April 2009, Mr Pollard recorded that he spoke to Peter Dinh by telephone about the non‑clearance of the temporary extension. He wrote that Peter Dinh explained that 'he will be talking to his agent today and will call back'.[166] When asked about this, Peter Dinh said '[w]hatever he spoke to me on the phone I could not understand him'.[167] Peter Dinh claimed that he never contacted his agents to find out when they would be paying him for his products.[168]
3. I do not accept Peter Dinh's evidence on this point. First, his evidence is inconsistent with a contemporaneous note. Second, as I later explain, I find his English was better than he admitted and that overall he was an unsatisfactory witness.[169]
4. On about 22 April 2009, Mr Pollard met with the Dinhs at the Plantation. Mr Pollard's note of that meeting stated (typographical errors corrected):[170]

Met with Peter, son Andrew and Anne on the Plantation to review the non-clearance and upcoming cash flow.

Non-clearance:

Speaking with Andrew and Peter it was apparent the non-clearance was brought about from a number of issues

1. Personal Loans to Family, that owe Peter (approx 55,000) were expected to be paid back however have been unable to pay at this point in the season (commencement of the season where income is low). This would have cleared the excess. However one family is able pay 20,000 in the next 2 weeks.

2. Watermelon Income: Original watermelon income from the first batch was projected to clear the debt however the market agent advised Peter not to pick until the price picked up. As a result, approx 40% of his crop was affected by the hot conditions. Therefore they only ended up with 42 smaller bins (approx 21 tonne) 24 seedless and 18 seeded at a price of $16,000. This money will be retained by the market agent as he originally advanced funds to help Peter with seedlings, and the acquisition of the Plantation.

New Clearance Source

1. Jenny Lee owes Peter 35K, however is only in a position to pay him 20,000 in 2 weeks.

2. 2nd patch of watermelons was sighted by RM [RM is the 'relationship manager', being Mr Pollard[171]] and Peter expects to harvest 70 large bins (70 Tonne). Assuming 0.70 per kg less $75 per pallet (Tonne) freight cost and 15% commission. Peter would expect to bank approx $37,000, assuming 1 fruit per plant on 3500 plants.

3. the first patch of tomatoes is due to be picked in 5 weeks 12,000 seedlings at 1 fruit per plant would expect to yield 3 tonne of tomatoes, working from $24 per box (given the early part of the season) after freight and packing ($4.60 per box) and commission 15%, Peter will have approx 5,000.

Not included in this is his rental income from Blackburne real estate and approx 4,500 in other account.

Peter apologised for having to ask for an extension and assured me the limit will be cleared within 30 days.

Therefore I am prepared to extended the TE [temporary extension] to 50k for another 30 days.

Shellice please ensure limit is input.

1. It was put to Mr Pollard in cross‑examination that the specific information had come from Andrew Dinh not Peter Dinh. It was put, in effect, that Peter Dinh's English was insufficient to enable him to give that sort of information. Mr Pollard did not independently remember this meeting. However, he said that that sort of information could have come from Peter Dinh and that Peter Dinh's English was sufficient.[172]
2. Mr and Ms Dinh were not asked about this meeting.
3. In his evidence, Andrew Dinh said he remembered the meeting, but not the details.[173] However, later in his evidence, Andrew Dinh was asked about an email he had sent to Mr Pollard in June 2009. In that email, Andrew Dinh had referred to a meeting in which his aunt Ms Lee had agreed with Mr Pollard that she would give the Dinhs $30,000 if they fell short of funds.[174] In his evidence, Andrew Dinh explained that Ms Lee owed them money and Mr Pollard had confirmed that it would be paid back and that Mr Pollard approved the temporary extension on that basis.[175]
4. I am satisfied that Peter Dinh's English was sufficient to have told Mr Pollard what Mr Pollard recorded.[176] I am satisfied that Mr Pollard's note was accurate.

1. The temporary extension granted in April was due to expire on 22 May 2009.[177]
2. Andrew Dinh gave evidence that, at some stage, Mr Pollard rang him to advise that the $50,000 overdraft was about to reach its limit. Andrew Dinh said that, at the time of that call, the Dinhs had not yet received any income from the farm. Andrew Dinh said that Mr Pollard said he could offer them a temporary overdraft but in order to obtain that they would need to submit a cash flow budget to him.[178]

1. The Bank's records contain a 'call report' created on 26 May 2019.[179] It states 'After speaking with Andrew last week to clarify [that] the [t]emporary facility will be cleared, it is apparent that the Limit has not been able to be cleared'. The report also set out the reasons the Dinhs gave for the non‑clearance. These were that the family debts had not been paid on time and that, due to recent rain, the watermelons were not ready to be picked.
2. It was put to Mr Pollard that he had not spoken to Andrew Dinh the week before. It was put that he 'made up' this note to say he had been doing things the previous week that he had not done. It was put that he had made it up in an attempt to explain what he had been doing to people within the Bank who were concerned about the account. Mr Pollard denied this. He said it was possible he had been in transit travelling when he had spoken to Andrew Dinh the previous week.[180]
3. On 26 May 2009, Mr Pollard sent an email to Andrew Dinh attaching a template cash flow spreadsheet, saying 'as discussed please complete the above cash flow budget with the reasoning for not being able to clear the temporary overdraft and the required amount and time frame for the proposed extension'.[181]
4. I accept Mr Pollard's evidence about the call report. I accept that, as he recorded in the note, he had spoken to Andrew Dinh the week before. Mr Pollard's evidence is supported by Andrew Dinh's evidence and the email.
5. First, as noted above, Andrew Dinh gave evidence that Mr Pollard had telephoned him 'at some point' to say that the overdraft was about to reach its limit and that they would need to submit a cash flow budget to get a further extension. The extension that was in place prior to Mr Pollard asking for a cash flow budget was due to expire on 22 May 2009. Accordingly, it may be inferred that this conversation occurred before the previous temporary extension expired on 22 May 2009.
6. Second, the email of 26 May 2009 uses the phrase 'as discussed', indicating there had been an earlier conversation.
7. Third, I find Mr Pollard to have been a credible and reliable witness.[182]
8. I also note that Mr Pollard's evidence, and the call report itself, are consistent with the records as a whole which show that Mr Pollard did not always enter client interactions into the Bank system contemporaneously.

1. Andrew Dinh gave evidence that he had never done a cash flow budget before, so Mr Pollard attended the Plantation and spent most of the day showing him how to do it.[183]
2. Andrew Dinh said that he and Mr Pollard obtained information about various crops to enter into the spreadsheet by going to the website of the Perth Market Authority and printing out a list of the maximum and minimum sale prices for each product from the previous year. Andrew Dinh said he went onto the website and printed out the Authority's spreadsheet of the particular products that the Dinh family were growing. In relation to the size of the harvest or potential harvest, Andrew Dinh said 'we just - Paul - Paul advised me. We just worked out the numbers and Paul had worked out the figure with me'.[184]
3. It was put to Mr Pollard that he had attended the Plantation to assist Andrew Dinh in preparing the cash flow budget. He said:[185]

Yes. To basically explain how it works and - and what we need to - what needs - what needs to go where, essentially, and then explain why - what the rationale for having a cash flow budget was for. Was to understand obviously, as I mentioned last week, that the peak debt requirements and the length of time that we're going to need a - a temporary overdraft.

1. It was put to Mr Pollard that he had helped Andrew Dinh determine what was going to be populated in that spreadsheet. Mr Pollard said that the content was based on the information that Andrew Dinh was providing. Mr Pollard denied he was 'there with [his] laptop, looking up prices on websites'.[186] He denied he was explaining to Andrew Dinh what numbers he needed. He said:[187]

No. That's not the case. It's whatever - whatever figures are going in there, it - and that's - it gives us a true picture of - of where the - the business is at.

1. On 3 June 2009, Andrew Dinh emailed Mr Pollard, saying 'please find attached my first attempt at this cash flow. Let me know how you think of it'.[188]
2. On 4 June 2009, Andrew Dinh emailed Mr Pollard:[189]

Sorry [I] forgot to include the reason why it [the overdraft extension[190]] wasn't paid last time and why we require further extension on the temp overdraft.

[G]oing back when your previous visits to Carnarvon, you came to our place and we sat and worked out how things will take place. My aunt Jenny was present at the time and she agreed with you that she would give us the funds should we fall short, the amount was $30,000 in which she only gave us $10,000. She still owes my parents a further $28,000 along with Liam's mum another $20,000. But we have failed to get that from both of them, we are seeking an extension on the temp overdraft possibly for a month. As we have grape pruning which is starting tomorrow, that is going to cost around $12 000.00 and we don't have avail funds for that.

[C]ould you please submit an extension for us and we are picking out tomatoes and capsicums will be starting in a week, as the prices are rising. [T]hank you Paul for your much extended assistance with this and this will be the last extension we will be requiring for the year I hope. [T]hank you once again and have a nice day.

1. I accept Mr Pollard's evidence as to how the cash flow budget was created. I found him to be a truthful and reliable witness and, to the extent that Andrew Dinh's evidence conflicted with Mr Pollard's evidence, I prefer Mr Pollard's.[191] I also note that the cash flow budget included itemised income and expenditure for the months leading up to May. That is, it purported to include the actual income and expenditure for March and April. This information would not have been known to Mr Pollard and had to have come from the Dinhs.
2. On 5 June 2009, Mr Pollard emailed the cash flow budget and Andrew Dinh's explanation to Andrew Williams, a credit risk manager in the Bank. The cash flow budget predicted that the peak debt would be $107,000 and would occur later that same month, June. It predicted that the debt would be cleared (ie. below the overdraft's unextended limit of $50,000) by August. Mr Pollard recommended that a further temporary extension of $60,000 be granted to 31 August 2009.[192]
3. Mr Williams approved the further extension. Mr Williams noted, however, that it was a 'weak credit and debt carry really needs to be reduced'. He said that 'all future dealings with this credit from a risk perspective are to be channelled through me'.[193]
4. It was put to Mr Pollard that, in effect, he was just pushing the matter along with no expectation that the situation would improve. Mr Pollard said he was expecting it to improve based on the information the Dinhs were providing to him.[194] This was entirely reasonable. Mr Pollard had no reason to think, at that time, that the Dinhs were not being honest with him.[195]

1. The Bank's records show that a 'NetBank' form was sent to Andrew Dinh in June 2009.[196] Ms Dinh initially said that neither she nor her husband had internet access to the account, although she said she did not know whether her son Andrew did.[197] Later, she admitted she did have internet banking, but said that she had no idea how to use it.[198]
2. Andrew Dinh gave evidence that he set up 'NetBank' for his parents so they could access their accounts on the internet. He also said he transacted on the internet on their behalf and they gave him their passwords so he could do that. He agreed that, once the internet banking was set up, it was possible to see the state of the account on the internet.[199]

1. Andrew Dinh gave evidence that Mr Pollard would ring him on a regular basis to see how things were going. He said that, in about June, Mr Pollard asked him how the sales of the other properties were going.[200]
2. Andrew Dinh gave evidence that he had not been aware 'at the start' that the properties had to be listed for sale. He said Mr Pollard had told him that he had set up the loan on the basis that they would have the properties sold within six months.[201]
3. It was not clear from Andrew Dinh's evidence when he was asserting he first found out that the other properties had to be sold.[202] He may have been asserting that it was around the time of the cash flow budget (May/June 2009) or in a conversation before then.[203] Regardless of what he was intending to assert, I do not accept that he did not know before the loan was entered into that the Dinhs had to sell the other properties. As I explain elsewhere,[204] his mother knew this and he was her primary source of information. I also later explain why I have concerns about Andrew Dinh's reliability as a witness.[205]
4. Eventually all of the properties, except the Plantation and the family home in Ballajura, were listed for sale.

1. Andrew Dinh said that, after the cash flow budget had been prepared, he continued to have contact with Mr Pollard.
2. Andrew Dinh said that at some point Mr Pollard rang him to ask for money to be deposited into the overdraft account because 'it was drawn'. Andrew Dinh said that his mother had a bit of money saved up and they went to the Bank to deposit the cash. He said he did not remember how much cash it was.[206]

The Bank's arrears management team calls - August 2009

1. On 14 August 2009, Andrew Dinh phoned Mr Pollard to advise that the Bank's 'arrears management team' had telephoned his father and told him that the Dinhs were in arrears by approximately $10,000. Mr Pollard told Andrew Dinh that he was not in front of his computer, but that sounded correct. Mr Pollard also explained to Andrew Dinh that the Bank could not extend any more finance until this was brought into order. He asked Andrew Dinh to get back to him early the next week to determine if the accounts would be in order by the end of August.[207]
2. Andrew Dinh said he remembered that telephone call and told his parents about it, particularly his mother.[208]
3. On 17 August 2009, Andrew Dinh again phoned Mr Pollard.[209] He gave Mr Pollard an update on how the sales of the properties were progressing. Mr Pollard asked Andrew Dinh to advise him as soon as possible of the outcomes.
4. Andrew Dinh also told Mr Pollard that his parents felt that their agent EPT had 'not been totally honest with them and have been undercutting them on price'. Accordingly, his parents had decided to change their selling arrangements.
5. On 26 August 2009, Andrew Dinh and Mr Pollard spoke again.[210] Andrew Dinh again updated Mr Pollard on how the sales of the other properties were progressing. Andrew Dinh also gave some details of how the business was going and said he expected the overdraft facility to be brought under the limit by 31 August 2009 and would keep the Bank informed otherwise.
6. The Bank's records show that Mr Pollard followed up with Andrew Dinh on 31 August 2009, and told him he needed to provide something in writing by the end of the day.[211]

Request for another cash flow budget - September 2009

1. Two days later, on 2 September 2009, Mr Pollard emailed Andrew Dinh to advise that he was yet to receive any information relating to the sale of the properties or the clearance of the temporary extension to the overdraft. Mr Pollard advised that he therefore had no alternative other than to dishonour any payments on the account.[212]
2. On 7 September 2009, Mr Pollard again emailed Andrew Dinh, saying it had been a week since they had last spoken. Mr Pollard wrote that he had tried to contact Andrew Dinh on several occasions. Mr Pollard advised that the temporary overdraft facility expired on 31 August 2009 and he had not yet received an amended cash flow budget nor the reason for the non‑clearance. Mr Pollard advised that, if he did not receive the updated information by that Friday, he would be reassessing the position and may refer the Dinhs to the credit management area.[213]
3. Andrew Dinh gave evidence that he explained Mr Pollard's message to his mother, telling her that the account was overdue and that she had to find the money to pay the overdrawn account.[214]
4. Andrew Dinh said that Mr Pollard again helped him to produce an amended cash flow budget.[215]
5. On 25 September 2009, Andrew Dinh and Mr Pollard spoke again.[216] Andrew Dinh told Mr Pollard that there were additional funds coming in, that day and on Monday, that would almost bring the account into order. He also updated Mr Pollard on how the sales of the properties were progressing.
6. On 15 October 2009, the Bank received an updated cash flow budget from the Dinhs.[217]

Ongoing updates and promises - October 2009 to end 2009

1. The Bank's records show that on 28 October 2009, Ms Regan told Andrew Dinh that he needed to have credit funds available of $6,017.29 to cover the 'bill roll over and line fee'. She advised him that the payment had to be made by noon or the Bill Facility would be matured into a 'Bills Matured Account'.[218]
2. Andrew Dinh said he remembered this conversation, told his mother about it, and ensured that the payment was made by noon. He then clarified that he remembered a few of these types of conversations, and he could not remember if this was the one in which he had said it would be paid by noon.[219]
3. In November and December 2009, the Bank's records show numerous communications between the Bank and Andrew Dinh. Andrew Dinh continued to seek to reassure Mr Pollard that money was on its way.[220] Andrew Dinh continued to provide information to Mr Pollard.[221]

1. In late 2009, Peter Dinh and Andrew Dinh set up an ANZ account in the name of 'The Manager, Peter Dinh & Hung Tran'.[222] Hung Tran is Andrew Dinh.[223]
2. The evidence established that the account was used for the purpose of the farm business. Income from the farm was deposited into that account.[224] The evidence did not disclose how much of the income was put into this account or precisely when that began. What the evidence did show was that, at least by mid‑2011, farm income was being deposited into that account. Ms Dinh handled all of the transactions on this account.[225]

The Bank statements are faxed to the Dinhs - 25 November 2009

1. As I will later explain,[226] it is possible that Ms Dinh did not receive the posted[227] Bank statements for the overdraft, as they were addressed to the South River Road address. However, the Bank's records show that the statements for the overdraft account were sent to Andrew Dinh on 25 November 2009.[228] Andrew Dinh remembered getting the statements and said they would have come to their family fax machine at the Plantation.[229]

1. On 16 December 2009, an officer of the Bank in a section called 'Credit Risk', Craig Matthews, took control of the Dinhs' account and met with Andrew Dinh. Following the meeting, a strategy paper was prepared and endorsed. The strategy was:[230]

(1) all residential properties (except Ballajura) were to be sold by 30 June 2010;

(2) sale proceeds would be credited to repay home loans and the remaining funds would be applied to the commercial facilities; and

(3) a temporary extension of $60,000 would be set up on the overdraft until 31 March 2010 to provide working capital for the farm and to assist in paying creditors.

1. On 26 February 2010, Andrew Dinh updated the Bank on how the property sales were progressing and on the business.[231]
2. In March and April 2010, the Bank and Andrew Dinh continued to communicate over the property sales and the Bank's requirements.[232]
3. In March 2010, the one year term expired. At that point, the Bank could have converted the Bill Facility into a Bills Matured Account, under which the entire loan would have been immediately repayable. Instead, the Bank repeatedly authorised 'roll‑overs' of the Bill Facility, and further extensions to the overdraft, to give the Dinhs more time to get their finances in order.[233]

1. On 3 May 2010, Mr Pollard went out to the Planation to have Mr and Ms Dinh sign the discharge papers for the Aveley property, which was going to settle on 14 May 2010.[234] A 'Discharge of Security/Repayment of Loan' form was signed by the Dinhs and Mr Pollard and dated 3 May 2010.[235]
2. Mr Pollard made a record in the Bank's system of this visit.[236] He wrote that he advised Mr and Ms Dinh, in the presence of their son Andrew, that the sale proceeds of the Aveley property would be distributed by repaying the loan on it, repaying the overdraft (but leaving the limit intact) and reducing the loan on the Perth property. He wrote that the Dinhs acknowledged this.
3. The record continued:

Andrew asked if we could look to increase the Overdraft as 50,000 quickly gets eaten up. I explained to Andrew that it would be best if we leave it until all the property has been sold and debt reduced [to] what was originally planned, then once they have established that they are able to sustain the level of debt they have, we could review their facilities.

1. Mr Pollard did not independently remember the conversation, but said he had no reason to believe his note was not accurate.[237]
2. In his evidence, Andrew Dinh said he did not remember this conversation. He also said that his parents 'never wanted to keep the overdraft facility' and wanted to get rid of it so 'there was no reason to extend it'.[238]
3. I do not accept this evidence.
4. First, as noted earlier, in June 2009, Andrew Dinh prepared a cash flow budget in order to obtain a temporary overdraft above the existing limit. He emailed Mr Pollard to explain how the overdraft would be cleared, and asked Mr Pollard to approve a further extension.
5. Second, on 4 May 2010, the day after Mr Pollard had written the note of the visit to the Plantation, Mr Pollard emailed Mr Matthews. He advised that Andrew Dinh had asked for further funds to purchase chemicals, because the vendors would not accept a cheque as previous cheques had bounced. Mr Pollard recommended that the overdraft limit be further increased to permit this, noting that the sale of the Aveley property would clear the overdraft. Mr Matthews approved this.[239] Andrew Dinh was asked if he recalled that conversation and he said 'possibly, yes'. Andrew Dinh said they were allowed to draw money after that.[240]
6. Third, as discussed below,[241] Ms Dinh gave evidence that, after the Aveley property settlement, she asked her son to provide information about the business to the Bank so that an extension to the overdraft could be given.
7. I find that Mr Pollard's record of his meeting with the Dinhs was accurate.

1. The Aveley property settled on 14 May 2010. Andrew Dinh said 'my parents believed that there was a bit of money in equity in that property in which that would relax them a bit with this overdraft that was overdrawn. Yes. But that was not the case'.[242] Andrew Dinh said that the overdraft was not paid down and that he had asked Mr Pollard if the overdraft could be reduced 'because of the interest and the stress it was causing us because we had no income and Paul [Pollard] responded by saying he decided where the money went'.[243]
2. Although Andrew Dinh asserted that the overdraft was not paid down with proceeds from the sale, it was. On the date of settlement, the proceeds were distributed as Mr Pollard had foreshadowed. $140,000 of the proceeds was deposited into the overdraft account, reducing the debit balance to $1,221.88.[244]

1. In her evidence, Ms Dinh claimed that she did not know that the Bank had taken securities over the properties that had previously been secured by other lenders. She said that she was surprised that, when the Aveley property sold, she did not receive the balance of the proceeds after the mortgage had been paid off. She said she thought the Aveley property was still mortgaged to SAMsLoans, and that she did not know the Bank had mortgaged it. She claims that she asked her son Andrew Dinh to find out from Mr Pollard where the balance had gone. She said she was told by her son that Mr Pollard said that, because he was managing the account, he had the power to retain the money.[245] I do not accept this evidence.
2. First, as I have previously explained,[246] I find that Ms Dinh knew, before signing the Loan Agreement, that the Bank had taken securities over all of their properties.
3. Second, as I will later explain,[247] I find that Ms Dinh knew, before signing the Loan Agreement, that the Bank intended to refinance the loans that were with other lenders. She also knew, soon after settlement, that each of those loans had been paid out in full.
4. Third, prior to the settlement of the Aveley property, Ms Dinh knew exactly where the proceeds from the sale would be going. Mr Pollard had told the Dinhs when he attended the Plantation prior to the settlement.
5. Fourth, Mr and Ms Dinh signed a 'Discharge of Security/Repayment of Loan' on 3 May 2010 in relation to the Aveley property.

1. Ms Dinh also gave evidence that she told her son to tell Mr Pollard 'do whatever you want, but you have to resolve to help us to resolve the issue because we don't have any money'. Her evidence was that this was during the same phone call - that is, shortly after the Aveley property had sold.[248]
2. Ms Dinh said that Mr Pollard responded through Andrew 'you need to establish a ... listing or a statement whereby you present your future businesses and then we would be - we'll be looking at that and we will be able to provide you with another overdraft account of about - of $100,000'.[249] Ms Dinh said that she then asked her son Andrew to provide information about the business to the Bank.[250] Ms Dinh said that, at the time she had that conversation with her son, the overdraft was $50,000.[251]
3. Ms Dinh is clearly wrong about the timing of this exchange. The overdraft balance had been reduced to virtually nil from the proceeds of the Aveley property.[252] The Dinhs did not need an extension at this time. If this exchange occurred, it is likely to have been in 2009. However, I accept that this exchange occurred. Both Mr Pollard and Andrew Dinh gave evidence of Mr Pollard asking for information about the business and being provided with it by Andrew Dinh.
4. Ms Dinh's evidence about this exchange, which I accept apart from its timing, is inconsistent with Andrew Dinh's evidence that his parents did not want the overdraft and did not want to extend it.

1. Following the settlement of the Aveley property, the Bank continued to communicate with the Dinhs about the progress of the sales of the other properties.[253]
2. In October 2010, Mr Pollard and Mr Williams met with Peter Dinh, Andrew Dinh and Ms Dinh to discuss the strategy for the sales. The Dinhs also updated the Bank on the income they expected to receive from the business, advising that they expected the overdraft to be back under its limit within a week or two and the CBFC[254] loan arrears cleared by the end of the month.[255] The Bank's records show that Mr Pollard continued to communicate with Andrew Dinh when the CBFC loan remained in arrears and the foreshadowed income did not materialise in the Dinhs' overdraft account.[256]

1. There was a flood in late 2010 in Carnarvon. There was another flood in February 2011.[257]
2. Ms Dinh said that the first flood completely inundated the house and flooded the part of the property that they farmed. She said they were unable to harvest any of their crops. She said they ran out of money and were in difficulties. She said she had to borrow money from her sister to pay for insurance of the cars and asked her neighbour to lend her some seedlings so they could grow the next crops.[258]
3. Andrew Dinh said that the second flood tipped in the shade‑cloth houses they had, and the structures collapsed. He said it flooded the house on the working part of the property up to knee high and 'washed away all our crops or seedlings that we had ordered'.[259]
4. Andrew Dinh said it put the planting back for about two months, and effectively held them up until April or May.[260]
5. Peter Dinh's evidence about the two floods was not entirely clear. However, it appears that he intended to say that their farming was disrupted for six months by the combined effect of the two floods.[261]
6. As a result of the floods, the Bank suspended the Dinhs' obligation to make repayments for ninety days.[262]

The Dinhs stop paying the Bank at all - probably early 2011

1. It appears from the Bank statements that, apart from a single deposit on 23 February 2012, the Dinhs stopped depositing money into the overdraft account in early 2011. The records show no deposits from them after 18 January 2011 until the single deposit on 23 February 2012. This deposit, of $3,083.60, appears to have been made by the Dinh's agent EPT for watermelon sales.[263]

1. In November 2011, the Bank issued notices of demand in relation to the money owed.
2. On 30 November 2011, the Bill Facility was transferred to a Bills Matured Account. Once that occurred, the Dinhs were obliged to repay the amount outstanding, and interest continued to accrue on the unpaid amount.[264]

Ms Dinh finds out the Banks want to take all her properties

1. In January 2012, the Bank told Peter Dinh it intended to take possession of all of the security properties.[265]
2. Ms Dinh gave evidence that her husband told her that he had been told that the Bank wanted to take over the Plantation and the Dianella property. She said that this news came as a surprise to her. She went into the city with her son Andrew Dinh and her brother to meet a Bank officer. She said that she asked why the Bank had not told them earlier that it was going to do this. She said that the Bank officer said that the Bank had told them earlier, and showed her a stack of letters that the Bank had sent. She said the letters had been sent to the wrong address and she had not received them.[266]
3. An appointment was made for Ms Dinh with a different person in the Bank, a Mr Ficko. Ms Dinh said she attended that meeting with her niece Lisa Tran who speaks English and Vietnamese. She said her niece was acting as an interpreter. Ms Dinh gave evidence that her niece pointed out to Mr Ficko 'that according to the standard of documentation from the bank, there needs to be a signature to each of these documents as well as the initials to each of the - each part - each page of the document that there was no signature nor any initials to the page of documents'. Ms Dinh said that Mr Ficko responded by hitting his head with his hand and saying that Mr Pollard 'has been wrong in doing this'.[267]
4. There was evidence that, after the Plantation was purchased, the Bank had not updated the Dinhs' address in all of its records. It appears that documents in relation to the overdraft were addressed to the South River Road address. The Bank submitted that Ms Dinh would still have received all such documents. This is because Australia Post did not deliver to any residential addresses in Carnarvon at that time. All mail had to be collected from the post office. For that reason, Mr and Ms Dinh had set up a post office box address in Carnarvon when they first went there, in 2002.[268] The Bank submitted that any mail addressed to the South River Road address would have been placed in the Dinhs' post office box.[269]
5. It is unnecessary to make a finding about this. It is enough to say that it is possible that Ms Dinh did not find out that the Bank intended to take over the Plantation and the Dianella property until after her husband told her that. Nothing turns on this.
6. Similarly, nothing turns on whether Ms Dinh's evidence as to what Mr Ficko said and did was correct. I observe, however, that it does not seem particularly plausible.

1. Ms Dinh gave evidence that, after she found out the Bank proposed to take all of their properties, she told her daughter Tia Dinh. She said her daughter rang up the Ombudsman. Ms Dinh said that her daughter told her that the Ombudsman said that they needed to find a lawyer so that they could look at the issue properly so that the Bank would not kick them out of the house.[270]
2. After her daughter had spoken to the Ombudsman, Ms Dinh said she asked her daughter to write a letter to the Ombudsman. She agreed that her daughter had talked to her about what was in the letter.[271]
3. Ms Dinh was then shown a copy of her daughter's letter to the Ombudsman, with two attached forms, which were received by the Ombudsman on 7 September 2012.[272] Ms Dinh said she recognised her daughter's handwriting on the letter, but said she did not see it at the time. She said that all her daughter had told her was that the Bank could not kick them out of the house. Ms Dinh said her daughter had not told her what she was going to tell the Ombudsman and that she did not know what her daughter had told the Ombudsman.[273]
4. The only complaint contained in the documents sent to the Ombudsman was in one of the forms, titled 'Dispute Form'. It said that the Dinhs did not know that the loan term was for only one year as they had been told that the loan term was 30 years.[274]
5. Ms Dinh was taken to that entry. She said she could not identify it as her daughter's handwriting, saying she did not remember her daughter's handwriting. She said she had only said that it was her daughter's handwriting on the letter because the letter included her daughter's name and phone number. When asked to confirm that she was saying that she did not recognise her daughter's handwriting, Ms Dinh said that sometimes her daughter wrote quite 'big handwriting characters'.[275]
6. Although Ms Dinh denied knowing the contents of the documents sent to the Ombudsman, she did admit that the complaint was not correct.[276]
7. Ms Dinh also gave evidence that she had entered into a contract of sale to sell the Ballajura property. It appears that she intended to sell it to her daughter, Tia Dinh. Ms Dinh gave evidence that Ms Casella, her settlement agent, told her that the Bank had not allowed the settlement to proceed. Ms Dinh said that Ms Casella told her that she needed to ring the Bank to find out the reason. Although her evidence was not entirely clear, Ms Dinh appeared to be asserting that her sister, Cuc Tran, told her that the Bank had said it would not allow the settlement to go through because she had made a complaint to the Ombudsman.[277] Ms Dinh's evidence was hearsay. Mr Pollard was not asked about this, and neither party drew my attention to documents which may have shed light on this issue. However, nothing turns on it.

1. On 13 September 2012, Peter Dinh was made bankrupt on the petition of CNH Capital Australia Pty Ltd, an entity unrelated to the Bank. He remains an undischarged bankrupt.[278]

1. A notice of demand was issued to Ms Dinh in respect to both the Bills Matured Account and the overdraft account on 18 October 2013[279] and delivered to Ms Dinh on 30 October 2013.[280]

Other factual findings Sale of other properties

1. As noted earlier, the Aveley property settled on 14 May 2010. The proceeds from that sale were used to pay out the home loan account for that property, to pay down the overdraft account (by $140,000) and to reduce the outstanding loan balance for the Perth property.[281]
2. Mr and Ms Dinh sold the Landsdale property to one of their sons. Settlement was in November 2010 and the proceeds were used to pay out the home loan.[282]
3. Peter Dinh sold the Perth property on 11 January 2012 and the proceeds (less a credit to the buyer of $138,678.32[283]) were used to pay out the home loan account for that property and to pay down the overdraft.[284]
4. The Bank sold the Dianella property on 31 March 2014 and the mortgages were discharged. The net proceeds were paid into the overdraft account.[285] This was the last deposit made into the overdraft account. Prior to that payment, the last deposit made was $3,083.60 on 23 February 2012.[286]

1. As at 23 July 2019,[287] a total of $4,695,933.52 was outstanding on the two accounts, as follows:

(1) $1,436,700.29, on account 600011274073, being the overdraft with a current interest rate of 13.56%; and

(2) $3,259,233.23, on account 600011608264, being the Bills Matured Account with a current interest rate of 13.56%.

1. Ms Dinh, subject to a caveat by Mr Dinh's trustee in bankruptcy, retains both the Plantation and the Ballajura property. The registered mortgages on the Plantation and the Ballajura property remain.

1. Mr and Ms Dinh emigrated from Vietnam in 1982. Vietnamese is their first language. Ms Dinh can read and write in Vietnamese.[288] Neither are fluent English speakers. Both gave evidence through an interpreter.
2. Each of them gave evidence about their level of English, as did their son Andrew Dinh.
3. Andrew Dinh said that he came to Australia from Vietnam when he was about 2 years old. He completed year 10 of school. He described his mother's English reading capabilities as a 'two out of ten' and his father's spoken English as better than his mother's, a 'four out of ten'.[289] Andrew Dinh said his father would have been able to speak to Mr Pollard about, for example, the issues relating to the sale of the Perth property.[290]
4. Ms Dinh gave evidence that she could only speak and read simple sentences in English.[291]
5. Ms Dinh gave evidence that she had the assistance of a Vietnamese speaker in several of the transactions she had been involved in prior to entering into the Loan Agreement. In obtaining finance from the NAB in relation to the Ballajura property, there were bank staff who spoke Vietnamese. In obtaining finance from the Bank in relation to the Perth property, there was a Bank officer, Anna Luong, who spoke Vietnamese. Ms Dinh said she also used a mortgage broker, Sang Nguyen, who spoke Vietnamese, in obtaining finance in relation to the Perth, Dianella and Aveley properties, and probably for the Landsdale property.[292]
6. Ms Dinh gave evidence that Ms Casella at Settlements Plus did all of their settlements for them. She said that Ms Casella did not speak Vietnamese and would communicate with her through Andrew Dinh.[293]
7. Ms Dinh said that her sister Ms Lee spoke reasonable English.[294]
8. As has been seen, the Bank's records included several notes made by Mr Pollard of conversations he had had with Peter Dinh. In his evidence, Mr Pollard confirmed that there were several times when he had spoken to Peter Dinh directly. He said:[295]

... That's where we - you would have a - you know, just a general chat on how things are going and - I mean, it was - it was broken English. It wasn't, you know, very fluent, but it was still able to understand what was - what message needed to be conveyed. So in terms of, you know, how the crops were going or the - you know, the market agent is no good, or the price is bad or, you know, it would be those type of conversations that ‑ ‑ ‑ [The witness was then interrupted].

1. Peter Dinh denied speaking to Mr Pollard in the terms recorded by Mr Pollard in the Bank's records. Peter Dinh said that his English was quite poor so Mr Pollard never talked to him personally. It was put to him that his son Andrew Dinh had given evidence that his father's English speaking was a 'four out of ten'. Peter Dinh responded, through the interpreter, 'Not so. Yes. Maybe around - about anything simple dealing with day‑to‑day businesses or some joking but not a serious business - no speaking'. He said he could only have a simple conversation like 'how are you? Something like working hard? That - it's just simple as that and nothing else'.[296]
2. Although both Mr and Ms Dinh gave their evidence through interpreters, it was clear that they understood some of the English being spoken. For example, Peter Dinh was asked 'Were there any grapevines on the farm?' The interpreter answered in English 'There - there was grapes, but it has been already pick up. There's not much left in terms of grapes'. Mr Dinh corrected the interpreter, saying, in English, 'Nothing left'.[297]
3. I find that Peter Dinh did have the conversations Mr Pollard recorded in the Bank's records.
4. First, there is no reason why Mr Pollard would have falsely recorded the member of the family to whom he was speaking as Peter Dinh, rather than Andrew Dinh. It would have achieved nothing.
5. Second, Andrew Dinh's evidence of his father's English abilities corroborated Mr Pollard's evidence.
6. Third, Peter Dinh gave evidence that he was the only one in the family who dealt with the various agents who took the produce and sold it. No evidence was led to the effect that all of those agents spoke Vietnamese and it is unlikely that they all did. Counsel for Ms Dinh appeared to concede that the agents did not speak Vietnamese, arguing instead that the necessary conversations would have been simple.[298] I accept that the conversations may have been relatively simple, but the conversations recorded by Mr Pollard were not complex.[299]
7. Fourth, it was apparent during his evidence that Peter Dinh did have an appreciable level of comprehension of English. While the trial occurred a long time after the alleged conversations, Peter Dinh did not give evidence that his English had improved over time and the impression he gave was that it was the same.
8. Fifth, Mr Pollard referred to one of the conversations he said he had had with Peter Dinh in an email to Andrew Dinh.[300] As I noted earlier, it is inherently unlikely that Mr Pollard would record in an email to Andrew Dinh that he had had a discussion with Peter Dinh if Peter Dinh's English skills would have made that impossible.
9. Sixth, as I later explain, I do not accept Peter Dinh's evidence as a whole and do accept Mr Pollard's.[301]

1. Ms Dinh said that her son Andrew was the one who was dealing directly with the Bank and the settlement agent. She was asked if she trusted that her son would tell her everything that was going on that she needed to know. She replied 'yes, I did trust him because this is not the first time. There was so many times before that he did these type of businesses for us'.[302] Ms Dinh said she completely trusted her son to look after her interests.[303]
2. Ms Dinh said that she relied on her son Andrew for help with English. She said she had been close to him since the day he was born and that she had always had confidence in him.[304]
3. Andrew Dinh said that he knew that his mother trusted him and relied upon him to translate. He agreed that he was the main person dealing with the Bank.[305]
4. Andrew Dinh said that, before and after settlement, if Mr Pollard asked him a question or asked him to do something, he would let his parents know, including his mother.[306] The documentary evidence bore that out.[307]
5. Ms Dinh said that, whenever Mr Pollard contacted her son Andrew, her son would report that to her. She said her son would tell her the detail of the conversations that he had had with Mr Pollard.[308]
6. Mr Pollard said that his main point of contact was Andrew Dinh and that he believed that Andrew Dinh was explaining what was going on to his mother. He said he saw and heard nothing to suggest this was not happening.[309]
7. The evidence is overwhelming that Andrew Dinh translated and passed on messages and information to and from his parents, primarily his mother, and Mr Pollard. I so find.
8. Both Ms Dinh and Andrew Dinh gave evidence that Andrew Dinh was also communicating with Ms Casella, the settlement agent, on behalf of his parents. An example of this was Ms Casella faxing the settlement documents to Andrew Dinh's business. As noted earlier,[310] Andrew Dinh said that the fax machine was in Perth and so he and his mother would have gone down to Perth to get the documents. Andrew Dinh gave evidence that he talked to his parents about the fax and that he would have explained its contents to them.
9. I am also satisfied that Andrew Dinh passed on his parents' instructions to Ms Casella, ensured that his parents were aware of Ms Casella's requirements, and kept his parents updated on what Ms Casella told him.

1. Ms Dinh had access to various people who could have assisted her with queries or advice, and she had demonstrated the capacity to obtain assistance and advice.
2. Both her brother and her niece worked in banks, at least at some stage.[311] Her brother helped her apply for a loan in relation to the Ballajura property. Her niece attended the meeting with Mr Ficko.
3. She used Vietnamese‑speaking mortgage brokers on a number of occasions.
4. Ms Dinh used the same settlement agent, Ms Casella at Settlements Plus, for all of her property transactions.
5. Ms Dinh obtained advice from her accountant. For example, Mr and Ms Dinh set up the trust on advice from their accountant. It was apparent from the Trust Deed itself that it had been prepared by lawyers.[312] Ms Dinh also gave evidence that she sought advice from her accountant as to whether she was permitted to work while receiving the disability pension.[313]

1. In this section, I set out my findings as to what Ms Dinh knew prior to entering into the Loan Agreement.

1. Ms Dinh appeared to act as a banker for her extended family.
2. Ms Dinh agreed that she had lent money to various family members in the past. She said that she would lend money to anyone in the family who needed money and came to her. She said that, apart from the loan she made to one of her sisters (not Ms Lee), she did not keep a record of the amounts that she lent. She lent that sister $20,000 in around 2006 ‑ 2008 when that sister bought a farm. She said that sister had not paid that money back. She said that, of the people she had lent money to, only her sister Ms Lee had paid her back, and even then not in full.[314] She said that her family members usually do not have the money to repay her.[315]
3. As noted earlier, Ms Dinh borrowed $50,000 from the NAB for her sister Ms Lee, because Ms Lee was not in a position to borrow money.
4. There was also evidence of Ms Dinh assisting her children.
5. Ms Dinh said that she and her husband bought the Landsdale block for their son, Yuong Dinh. She said this was because the bank would not lend their son the money.[316]
6. After the house had been built on the Landsdale property, Ms Dinh and her husband sold the property to their son, Yuong Dinh. This was in November 2010. Ms Dinh was asked 'were there proceeds from the settlement of the sale of the Landsdale property?' She replied:[317]

At that point in time house prices were quite low, so I do not want justify sale to any other person. I want to sell the house to my son, and I asked him to go and borrow the money from the bank in order to buy - have enough money to buy the house.

1. In giving such a non‑responsive answer, Ms Dinh appeared to have been anticipating a suggestion that the property was sold to her son for less than its market value.
2. Later in her evidence, Ms Dinh denied that she gave her son a discount off the market price; she said that she had sold it at market value. However, she said 'the broker said that you need to fix the price at that - at this level so that he can borrow money from the bank'. Ms Dinh admitted that she had sold it to her son for what he could borrow.[318]
3. Ms Dinh also said that she 'helped my son over $20,000 so that he can do the settlement'.[319]
4. In cross‑examination, Ms Dinh was asked about regular payments in her bank statement from a 'Y Dinh'. She said these were repayments from her son Yuong Dinh because she had bought a car for him around the end of 2009.[320]

Ms Dinh's role in the business was the finances

1. Ms Dinh said that, although she did do some physical work, her main job in the farming business was looking after the books and paying the bills. She said she had done that job when they were renting South River Road, when they were renting North River Road and then on the Plantation.[321] Ms Dinh agreed she knew how the farming business worked.[322]
2. Peter Dinh confirmed that his wife looked after the finances.[323]
3. Andrew Dinh said that his mother was the one who handled account transactions and bank statements.[324]

Her knowledge of mortgages and credit generally

1. Ms Dinh had a long history of borrowing money for the purchase of properties and the construction of houses on them, and of refinancing loans.
2. Ms Dinh understood that if she borrowed money from a bank she would have to pay it back. She understood that she would also have to pay interest and fees. She understood that a mortgage meant that, if she did not pay the loan, the bank might take the property. She also knew that, if the sale of a property did not cover the debt that she owed, she could still owe the bank money.[325]
3. Ms Dinh understood the basics of how a credit card works, including that the limit on the credit card is the maximum amount of money that can be spent on it.[326] Ms Dinh said that, whenever she received a statement from a credit card provider, she would pay the money owed.[327]
4. In 2001, Ms Dinh borrowed some extra money from the NAB to build houses on the Ballajura property and one of the properties in Benara Road. She said the borrowed money was put into an account along with the balance of the proceeds of a house that they had sold. She said she used the money in that account to pay the building contractors. She said she knew she could not write a cheque for more money than was in the account.[328]
5. In relation to cheque accounts, Ms Dinh said she would check the bank statements to see which of the cheques she had written had been presented for payment and which had not. She said she would check the bank statements against the cheque butts. She said that was her habit the whole time she had a cheque account.[329]
6. Ms Dinh said that, when she got bank statements from banks in relation to mortgages, she would check them so that she knew what she would have to pay to the lenders. She said she did that every time a bank statement came in.[330]
7. Ms Dinh was aware of the requirement to make regular payments on home loans. She gave evidence that, prior to the Loan Agreement, she made mortgage repayments to a number of lenders in cash. She paid cash to Homeswest. She paid cash to Suncorp‑Metway in relation to the Dianella property, every month. She paid cash to the Bank in relation to the Landsdale property. She paid cash to SAMsLoans in relation to the Aveley property.[331]
8. Ms Dinh also understood that whether a lending institution would lend money could depend on the circumstances of the borrower. More than once, Ms Dinh borrowed money on behalf of family members who were unable to obtain loans in their own names.

1. In her evidence‑in‑chief, Ms Dinh was asked if she knew what an overdraft was. She said 'yes. So, Mr Paul Pollard explained that the overdraft account means that the $50,000 in there, you will use it when you need and the rates - the rates applicable for that account is 20.9%'.[332] At another point in her evidence she said that, in the Gateway Hotel meeting, Mr Pollard had handed over a stack of documents for her to sign and (emphasis added) 'So I said to my son, it's just a simple overdraft. How come I have to sign so many documents?'[333]
2. In his closing address, counsel for Ms Dinh initially maintained his submission that Ms Dinh did not know what an overdraft was.[334] However, he later accepted that her description of what Mr Pollard had said reflected a good explanation of an overdraft. He then said that it was not that Ms Dinh did not understand what an overdraft was, it was that she did not understand that she would not have control of the funds in the overdraft. She did not understand, he submitted, that the repayments to the various property loans would effectively be taken out of her hands, by being paid automatically out of the overdraft.[335]
3. Ms Dinh did not give evidence that she did not understand this. On the contrary, her evidence was that Mr Pollard had explained that to her. Ms Dinh gave evidence that she stopped making repayments on the various home loans after the settlement of the Plantation. She said she had stopped because Mr Pollard had explained to her that the repayments would be made from the overdraft account. Ms Dinh said this was 'before we went to Ballajura to sign the documents'.[336] No attempt was made to more precisely identify when this was. However, I am satisfied that it was before Ms Dinh had signed the Loan Agreement.
4. Counsel for Ms Dinh also suggested that Ms Dinh did not know that the interest payments for the Bill Facility would be deducted automatically from the overdraft. I do not accept that she did not know this. Ms Dinh did not give evidence that she did not know this. Nor was there any evidence that she had sought to make a repayment of the interest due on the Bill Facility at any time. I infer that she did know.
5. Accordingly, I find that, before entering into the Loan Agreement, Ms Dinh knew what an overdraft was, and knew that the repayments on the Bill Facility and housing loans would be deducted automatically from the overdraft.

1. Ms Dinh was asked questions about what she understood at the time she entered into the mortgage for the Ballajura property in 1999. The following exchange occurred:[337]

THOMPSON, MS: And when you entered into the mortgage for Ballajura in 1999, you also understood that if you needed advice you could ask an accountant or a lawyer or a friend?

INTERPRETER: That - at the point in time - my brother was working at the National Australia Bank so he knew about the - the rules. And then he helped me to do these things for me.

THOMPSON, MS: So your brother explained it all to you?

INTERPRETER: He helped me in my making the application for the loan. Nothing else.

THOMPSON, MS: Okay. But you knew that if you needed advice you could ask a lawyer, you knew that didn't you?

INTERPRETER: No, I don't know that. I only knew that when I borrow money, if I have a thing - if I have the ability to make the repayment then I will submit the application to - to - for the loan. And - I don't know anything else.

THOMPSON, MS: So - but you understood you could ask people for help, didn't you?

INTERPRETER: At the point in time I only did - the people - the Vietnamese people, to help me in make the application - in making the application.

THOMPSON, MS: And your son Andrew, he helped you?

INTERPRETER: Yes. I think, as the interpreter.

THOMPSON, MS: And did he explain the documents to you?

INTERPRETER: No. I just provide the information, my details, informations and making the application for the loan.

THOMPSON, MS: So no one explained the National Bank documents to you?

INTERPRETER: No. No. My brother, he works at the bank and he helped me in setting up the loan.

1. Even if it could be accepted that Ms Dinh did not know she could get legal advice in 1999, it is highly likely she knew this by the time of the Loan Agreement. As noted earlier,[338] Ms Dinh had a long‑standing practice of using external resources when she needed them. She and her husband set up the trust on the advice of her accountant. The Trust Deed was evidently prepared by lawyers. She took advice from her accountant as to whether she was permitted to work while receiving a disability pension. She utilised mortgage brokers and settlement agents. In my view, at the time of the Loan Agreement, Ms Dinh knew she could obtain legal advice, but elected not to do so.

What did Ms Dinh know about the Loan Agreement?

1. Ms Dinh knew the Loan Agreement was for one year.[339]
2. Ms Dinh understood that she needed to pay $5,000 to $6,000 to the Bank per month.[340]
3. Ms Dinh knew they had an overdraft (and knew what an overdraft was[341]). She knew that the interest rate for the overdraft was significantly higher than the ordinary interest rate.[342]

Did Ms Dinh know they had to sell the investment properties?

1. The Loan Agreement did not provide that it was a condition of the loan that the three investment properties be sold within the one year term of the loan. In his closing address, counsel for Ms Dinh submitted that Ms Dinh did not know, and should have been told, that the Bank required her to sell the three investment properties within the one year term of the loan.
2. Even if this could be described as a condition of the loan, as distinct from merely the expectation in what was effectively bridging finance, I do not accept that the Bank failed to tell her this.
3. Mr Pollard said that the Bank would not have lent Mr and Ms Dinh the money if there was not an intention to sell the three investment properties. He said this was because, 'as we showed on the servicing exercise, ... we couldn't have done it. It just didn't work'. He said it would not have worked for the client and would not have fit with bank policy.[343]
4. Mr Pollard explained that this was why the loan was for one year:[344]

Why was it for one year?‑‑‑So it was in line with the bridging period, so it gave the bank the opportunity, if circumstances weren't - didn't go as planned, it gives the bank an exit strategy.

And was there an exit strategy in this loan?‑‑‑Well, the intention was to sell the three properties and then renegotiate that loan over a longer period, so as we did in the servicing exercise.

So when you say that was the intention, was that the subject of discussions with Mr and Mrs Dinh?‑‑‑Yes, yes. So the intention was to always sell the three properties, reduce the debt and then get it to a manageable level where they could pay the 1.1 over a longer period of time.

1. Counsel for Ms Dinh accepted that Ms Dinh intended to sell the other properties and was going to do so 'in an orderly fashion'. However, he submitted that she did not know the properties had to be sold 'within the first 12 months'. He said that Ms Dinh believed that they 'could buy the plantation and sell down as they went'.[345]
2. The fallacy in this submission is self‑evident. Ms Dinh knew the loan was for a period of only 12 months.
3. In any event, I am satisfied that Ms Dinh understood that the investment properties had to be sold within the one year term.
4. In the discussion of the second meeting with the Bank,[346] I set out Ms Dinh's evidence as to what she understood about the security for the loan. For convenience, I will reproduce it (emphasis added):[347]

I ‑ what I understood at that point in time, that Mr Paul Pollard told us that we do not need to sell anything, and I agree on his terms that I borrow that amount of money for one year with 3.4% rate.

... What I intended ‑ what I understood at that point in time was when he first said 12.8%. That's too high. That's beyond our ability for the repayment. And then he ‑ next his proposal was that lending the money for one year, the rate is 3.4%, then we have some time for us to sell ‑ to sell our assets in order to make the repayment, what I understood from that ‑ our position at that point in time.

1. On her own evidence, she knew they could not make the necessary repayments if the interest rate was 12.8%. Mr Pollard then offered a loan at 3.4% for a one year term, giving them 'some time to sell our assets in order to make the repayment'. I find that Ms Dinh knew that the Bank was lending them money at the lower interest rate, for the very short term of one year, to enable the investment properties to be sold. She knew that the Bank was offering them a way to buy the Plantation without having to first sell their investment properties (and risk losing the opportunity to buy it, and being unable to farm on it in the meantime), by giving them one year to sell their investment properties.
2. For completeness, I note that, later in her evidence, Ms Dinh said that, a year after entering into the loan, she asked her son Andrew to contact Mr Pollard and ask him what had happened to the loan. She claimed that Mr Pollard told Andrew 'you need to sell all your assets, then you could retain your house as well as the market garden farm and then you will be able to buy another market garden farm'.[348] Her evidence as to this was confusing.[349] I accept that she may have asked her son to contact Mr Pollard after the one year term had expired, as she knew the loan was only for one year. However, I do not accept that Mr Pollard said this to Andrew Dinh or that Andrew Dinh told his mother that Mr Pollard had said this.

Did Ms Dinh know the Bank was going to take securities on the other properties?

1. Ms Dinh pleaded that Mr Pollard had represented to her that the Loan Facility would be arranged without additional security. This was the alleged First Representation, and it was withdrawn in Ms Dinh's closing address.
2. The withdrawal was appropriate. The evidence was overwhelming that Ms Dinh knew that the Bank was going to take security over all of their properties.[350]

Did Ms Dinh know the Bank was going to refinance the other loans?

1. The Loan Agreement did not refer to the refinancing of the properties that were mortgaged by other lenders (the Ballajura, Dianella and Aveley properties). Ms Dinh asserted that she did not know the Bank was going to refinance those properties.
2. Ms Dinh gave evidence that, until the Aveley property was sold (May 2010), she believed it was still mortgaged to SAMsLoans, and that she did not know the Bank had mortgaged it. She gave evidence that she arranged for her son Andrew Dinh to call Mr Pollard when she did not receive the balance of the proceeds.[351]
3. As I explained earlier,[352] I do not accept this evidence.
4. In addition, other evidence compels the conclusion that she did know that the Bank was going to refinance the properties that were mortgaged by other lenders.
5. First, as set out earlier,[353] Ms Dinh signed the 'Consumer Loan Authorities' and 'Consumer Credit Contract Schedules'. The 'Consumer Loan Authorities' in particular were not complex documents.
6. Second, Ms Casella at Settlements Plus clearly knew, prior to settlement, that the Bank was refinancing the loans with other lenders.[354] On at least one occasion, she wrote to the Dinhs in terms that made it clear that the Bank was refinancing the loans with other lenders. This was in the Settlement Letter that Ms Casella faxed to the Dinhs on 18 March 2009.
7. Although the contents of that letter were set out earlier,[355] I will repeat the relevant parts for convenience.
8. In the Settlement Letter, it was confirmed that, further to a conversation with Andrew Dinh, settlement would be on 19 March 2009. It noted that penalty interest would be charged for the late settlement. The letter noted that attempts had been made to settle earlier, but the Bank 'was not able to arrange all the discharging banks to effect settlement any earlier due to the National Australia Bank not being ready on your behalf prior to the 19th March 2009. We understand that there are 6 parties involved on your behalf for this transaction'.
9. As the settlement was late and as penalty interest was accruing, it is to be expected that Ms Casella would have been keeping the Dinhs informed as to the delay and the reasons for the delay. The Settlement Letter is a concrete instance of Ms Casella doing that.
10. Earlier I explained why I find that Andrew Dinh passed on to Ms Casella his parents' instructions and that he kept his parents updated on what Ms Casella told him. Andrew Dinh also gave evidence that he talked to his parents about the fax and that he would have explained its contents to them.[356] I am satisfied that Andrew Dinh told his parents, prior to settlement, that the difficulties in arranging the discharging banks to effect settlement had caused it to be delayed.
11. For completeness, I note that Andrew Dinh gave evidence that he did not know until June 2009 that the loans to the other lenders had been discharged.[357] I do not accept that he did not know until then. He was the conduit between his parents and Ms Casella. It is unlikely she would have been acting without instructions in arranging the discharges. It is inconceivable that she would not have explained to the Dinhs, through Andrew Dinh, why settlement was delayed. In any event, this evidence does not support Ms Dinh's evidence that she did not know until May 2010.
12. Third, in March 2009, the other lenders sent bank statements to Ms Dinh showing that the home loans to those lenders had been paid out in full. Ms Dinh said she was not sure if she received the one from the NAB about the Ballajura property. Ms Dinh seemed to accept that she had received the one from SAMsLoans, but said she did not know when. However, Ms Dinh did admit to having received the statement from Suncorp‑Metway in relation to the Dianella property shortly after 24 March 2009.[358] There is no reason why Ms Dinh would not have received all three statements shortly after they were sent, and I so find.
13. Fourth, Ms Dinh did not attempt to make monthly repayments to those other lenders after the settlement of the Plantation.
14. In cross‑examination, she said this was because she knew those loans had been paid out in full.[359] In re‑examination, she was reminded that she had been asked whether she had made any direct payments in relation to mortgages on 'some of the properties that you owned'. Ms Dinh said she had not made any repayments, and said this was because Mr Pollard had told her that the repayments would be made from the overdraft account.[360]
15. It was not clear whether she was there retracting her initial answer and asserting that she stopped making repayments on the loans to the other lenders not because she knew they had been paid out, but because Mr Pollard had said the Bank would pay them automatically out of the overdraft. She may have meant simply that she did not make payments on any of the loans because she knew that the Bank would transfer the repayments for all of them from the overdraft into each of the respective loan accounts, which by then she knew were all with the Bank.
16. In my view, the latter interpretation is more likely, particularly given her admission that she received at least one statement showing that one of those loans had been fully paid out.
17. For these reasons, I do not accept Ms Dinh's evidence that she did not know the Aveley property had been refinanced until after it had been sold in May 2010. I find that she knew, before entering into the Loan Agreement, that the Bank was going to refinance each of the three loans with the other lenders and she knew, shortly after settlement, that that had happened.

Did Ms Dinh know that the new home loans would be one year interest only loans?

1. In his closing address, counsel for Ms Dinh submitted that Ms Dinh also did not know, and should have been told, that her home loans were being refinanced to one year loans with interest only repayments.[361]
2. I do not accept that she did not know this. She did not give evidence that she did not know this. Further, as noted earlier,[362] Ms Dinh signed documents in relation to at least three of her properties that clearly set out, albeit in English, that the repayments would be 11 months of interest only payments followed by one repayment of the rest.[363]

All moneys mortgages and commercial lending terms

1. In his opening submissions, counsel for Ms Dinh said she did not know that the mortgages were 'all moneys mortgages', such that if she defaulted on the business loan, all of the mortgages could be called in.[364] This was not repeated in counsel's closing address. This is likely to be because Ms Dinh did not give evidence that she did not know this. She also did not give evidence that she would not have entered into the Loan Agreement if she had known. In addition, while I accept that the Loan Agreement may have been her first business loan, this type of mortgage was not new to her. She had previously entered into mortgages on the same terms.[365]
2. Having regard to this evidence (and lack of evidence), I am not satisfied Ms Dinh did not know that the mortgages were 'all moneys mortgages'.
3. In any event, having regard to the circumstances as a whole, even if she did not know that the mortgages were 'all moneys mortgages', I would not infer that she would not have entered into the loan if she had known.
4. Counsel for Ms Dinh also submitted that it would have been difficult for Ms Dinh to understand the commercial lending terms.[366] Again, Ms Dinh did not give evidence that she did not understand any of the terms. She also did not give evidence that she would not have entered into the loan if she had understood the terms.
5. Further, having regard to the circumstances as a whole, even if she did not understand all of the terms, I would not infer that she would not have entered into the loan if she had understood.

Post loan, was Ms Dinh aware of the state of the overdraft account?

1. Ms Dinh claimed she did not get statements from the Bank in relation to the overdraft account. As noted earlier,[367] it appears that Bank documents in relation to the overdraft were addressed to the South River Road address. It is possible that Ms Dinh did not receive the posted statements for the overdraft.
2. In cross‑examination, Ms Dinh was asked if she requested Bank statements in 2009. She said she had not. She said that she only sought the statements after she found out that the Bank wanted to claim all of her assets (in 2012).[368]
3. Ms Dinh agreed that she had had bank accounts before 2009 and was used to receiving regular bank statements. She agreed she knew she needed the bank statements to manage the accounts. She then repeated that she had not asked for statements from the Bank in 2009, but said she had asked her son Andrew to get the statements. She said this was when her daughter had a car accident and she could not claim the insurance. She was asked if that was after 2009. She said 'Around that time'. She said her son did not obtain the statements.[369]
4. As set out earlier,[370] Andrew Dinh received a form to set up internet banking in June 2009, and, at some stage, he set it up so that his parents could access their accounts on the internet. He also said he transacted on the internet on their behalf and they gave him their passwords so he could do that. He agreed that, once the internet banking was set up, it was possible to see the state of the account on the internet.
5. Ms Dinh initially said that neither she nor her husband had internet access to the account, although she said she did not know whether her son Andrew did.[371] Later, she admitted she did have internet banking, but said that she had no idea how to use it.[372]
6. The Bank's records also show that the statements for the overdraft account were sent to Andrew Dinh on 25 November 2009. Andrew Dinh remembered getting the statements and said they would have come to their family fax machine at the Plantation.[373]
7. The evidence also established that Mr Pollard kept in touch with the Dinhs in relation to the level of the overdraft, as the limit was approached and as the expiry date of the temporary extensions approached.
8. It is clear that Ms Dinh had full access to the account statements once the internet access was set up. Prior to that time, Ms Dinh may not have had access to the account statements. However, there is no evidence to suggest this had any effect. She would still have been aware of the level of the overdraft, as the limit was approached and as the expiry date of the temporary extensions approached, from her son's interactions with Mr Pollard. Further, given her experience, if the absence of statements had caused her any difficulty, she would have obtained hard copies, or access to internet banking, earlier.

1. It will be recalled that Ms Dinh alleges that the Bank breached cl 25.1 of the Code by failing to exercise the care and skill of a diligent and prudent banker in selecting and applying its credit assessment methods to Mr and Ms Dinh and in forming an opinion about their ability to repay the Loan Amount and any other credit facility.
2. Ms Dinh submitted that this was proved because Mr Pollard had made assumptions about a number of figures, had not checked to confirm sources for other figures, wrongly included grape income, and had made some mistakes.
3. Mr Pollard explained his approach to the Dinhs' application for a loan:[374]

So the application was obviously to look to purchase the plantation. What we had was, they were quite heavily geared, so from a servicing exercise that we did, it was - it was determined that the only way we could do it immediately was to look at some form of bridging finance. Otherwise, what would have had to have happened, we would have had to have waited until a number of properties which they were going to sell were going to be sold and then we would be able to look at the plantation purchase. But obviously, doing that, there's a delay and they run the risk of obviously losing the plantation. So what we did was we did - as I mentioned, we've got in two parts. So we're financing the plantation and then the second component is to ensure the control of the disposal of asset and reduction of debt. So as it was, the borrowing were in other lenders, so we weren't able to control obviously the - the ability to sell those assets or reduce the debt with the proceeds where that went. So what the intention was was to look to provide an interest-only facility to enable them to buy the plantation, still being able to make ends meet, but then also give them 12 months to sell those properties.

1. Mr Pollard included a commentary about the Dinhs and the proposed loan in the application documents.[375] He wrote (formatting errors corrected):

Relationship description

[after describing their property portfolio]

Peter & Anne currently share a property with sister Jenny Lee (whom is looking to purchase a plantation herself) and would desperately like to get on their own plantation. Understanding that they are quite highly geared, Peter and Anne are looking to liquidate 3 of these properties (Aveley, Dianella and Landsdale). From this they will reduce debt down to a far more manageable level.

An opportunity to purchase a good plantation has been presented to Peter and Anne. Unfortunately Peter hasn't had time to sell off property before this opportunity come up.

Application description

...

Initially we are financing the purchase of the Plantation PP $1.1M Walk in walk out, as well as provide some carry on seasonal finance. Actual valuation held is $850K. Given that the Applicants need to sell property to reduce debt the application will be for 12 months interest only, repay/renegotiate. This will enable the bank to exit the business if the properties are not sold within the agreed time frames.

The second component is to ensure control over the disposal of assets and reduction of debt. As it stands now, Peter and Anne have 3 properties mortgaged to other lenders. Therefore,... so that the bank has full control over the settlement proceeds, I have proposed a refinance of the existing home loans.

...

Servicing

Peter's previous property they worked had very little improvements on it and was a smaller property (approx 14 acres/5.66 hectares) in comparison to proposed 8.2515 hectares that has the majority of property under crop net.

For the sake of servicing the loan I have based the projected cash flow from a combination of the new Plantation's 2007 financials in Wainwright and Wainright, the GST Returns for the 9 months ending 31/03/2008 and Peter Dinh's 2008 Financials.

However in order to determine the future servicing capacity of the Client several matters need to be considered.

1. Mr Pollard then set out, among other things, his analysis of the future grape production, the prospective rental income from the Dinhs' other properties and the anticipated increased yield from the superiority of the Plantation compared to the leased land.

1. Mr Pollard created a detailed spreadsheet estimating the income and expenditure of the Dinhs if they farmed at the Plantation (Projected Performance). The spreadsheet included a breakdown of the farming income and expenditure of the Dinhs at their leased property in 2008 (Dinhs' 2008 Performance) and of the existing owner of the Plantation in 2007 (Wainwright's 2007 Performance).[376]
2. Mr Pollard estimated the Projected Performance by making adjustments to the income and expenditure shown in the Dinhs' 2008 Performance or in Wainwright's 2007 Performance (Table 1).[377]
3. For example, there were developing grape vines on the Plantation that had not produced grapes in 2007 (although, as will be seen, there was income from grapes recorded in Wainwright's records for 2008). Therefore, Wainwright's 2007 Performance figures did not show an income from grapes or the additional expenses associated with grapes. Mr Pollard added to the Projected Performance an estimate of the grape income for the first year and the costs that would be caused by the grape production, with a buffer.
4. Mr Pollard added his estimate of grape income to his estimate of income from other crops to estimate the total income. For his estimate of other crops, he used a figure that was slightly less than the Dinhs' 2008 Performance figure.
5. Mr Pollard also included various other buffers in the Projected Performance.
6. Using those Projected Performance figures, Mr Pollard created a second table, comparing the Projected Performance figures with the Dinhs' 2008 Performance and their performance in 2007 (Table 2).[378] Mr Pollard said that Table 2 was 'just a check to make sure that things ... didn't look out of place'.[379]
7. Mr Pollard used the same total of income from produce in Table 2 as he used in the Projected Performance in Table 1. That is, an estimate of non‑grape produce income that was slightly less than the Dinhs' 2008 Performance figure, plus an estimate of grape income. The only difference in the total income figure came from the addition of rental income from the Perth Property.
8. In his commentary, Mr Pollard noted (formatting errors corrected):[380]

As it stands Peter & Anne currently have 3 properties that can be rented out however only 1 is rented (75/996 Hay Street, Perth WA 6000). Aveley Property has recently been completed and could be rented out, however is on the market. The Ballajura Property that is currently tenanted by Peter's son, Andrew, could also be rented out if Andrew moves to Carnarvon to help run the plantation. In addition to this, the Landsdale property is under construction and once complete could also be tenanted if Andrew doesn't purchase it from the family.

1. Despite noting the availability of rental income from properties other than the Perth property, Mr Pollard did not include any rental income from those properties in his calculations. This was because those properties were to be sold.[381]
2. Mr Pollard then applied an EBITDA[382] calculation to determine the figure to use for the purposes of servicing.[383]
3. He then created two more tables setting out what funds would be left after all the commitments had been met. The first of these (Table 3) dealt with the bridging period, the first year. This showed the position before the investment properties had been sold and on the basis that the Bill Facility commitment would be interest only. The other (Table 4) dealt with the year following. This showed the position after the investment properties had been sold and on the basis that the Bill Facility commitment would be principal and interest.[384]

1. Ms Dinh criticised Mr Pollard for including income from grapes in the Projected Performance.
2. At the time of the loan application, there were some developing grape vines on the Plantation. The vines had not produced any income in 2007 and had produced $40,000 in 2008. Mr Pollard expected that, as the vines were now fully mature, they would generate much more income.[385] Mr Pollard wrote:[386]
   1. FUTURE GRAPE PRODUCTION:-

The New Subject Property has approx 2400 relatively new Table Grape Vines (1.9 Hectares) under a shade structure (1800 (75% or 1.425 Hectare) Red Globe and 600 (25% or 0.475 hectare) Flame seedless). On Historic 2007 figures while the expenditure for the Vines were factored in, there was no income generated from the grapes due to age on the vines. 2008 produced approx $40,000 from which equated to approx. 4000kg per hectare of income from the Grapes but this is still well under weight for the average yield and income produced from this crop in the region which would be around 25,000kg/hectare between 27,000 kg and 30,000 kg per hectare. Therefore given the Plants are now at maturity to maximise yield, assuming [p]rices were similar to 2008 prices (Approx $3.98/kg Red Globe and $8.01/kg Flame Seedless), it would be safe to assume sales in the vicinity of

Red Globe 1.425Hectares * 25000kg @ 3.98 = $141,800

Flame Seedless 0.475 Hectares * 25000kg @ 8.01 = $95,118.75

This income with the exception of some possible additional labour freight will be pure added profit to the plantation as the running costs were already factored into the property. Estimated freight costs would be $1.25 per box (10kg Box) therefore 1.9 Hectares* 25,000/10 @ $1.25 = $5937.

1. From this, it can be seen that Mr Pollard estimated that in 2009 there would be $236,918 of income from grapes. He then 'sensitised' that figure by 10%, reducing it to $213,226.
2. In his evidence, Mr Pollard said that the information as to prices most likely came from the Perth Market Authority website.[387] He said he estimated the income in consultation with Peter Dinh and Andrew Dinh.[388]
3. Mr and Ms Dinh had not previously grown grapes. Ms Dinh submitted that Mr Pollard should not have included an estimate for grape income on the assumption that they would be able to grow grapes.
4. I do not accept this. The Dinhs presented as people who had been making a living from market gardening for seven years, and, at least in recent years, on smaller land with inferior conditions (no crop netting). It would not be unreasonable to assume that they could turn their hand to a new crop.
5. As it turned out, the Dinhs did grow grapes. Andrew Dinh gave evidence that, when his parents bought the Plantation, his father asked him to come up to Carnarvon for a year to look after the plants. Although Andrew Dinh had not previously grown grapes either, his English was fluent[389] and the Dinhs clearly thought he would be able to grow them. On 4 December 2009, Andrew Dinh reported to the Bank that they had sent off their first lot of grapes to be sold.[390]
6. Ms Dinh also submitted that Mr Pollard should not have included an estimate for grape income because they would not have received such income until 2010.
7. I do not accept Mr Pollard should not have included an estimate for grape income. Mr Pollard said that income from grapes would normally come at the start of a year. In cross‑examination, he accepted that, due to the delay in settlement, the Dinhs would not have received any income from the grapes until the start of 2010. However, Mr Pollard was projecting income over the one year term on a 'year in, year out' basis,[391] and the income from the grapes would still have been received within that period, that is, before March 2010.
8. In addition, Mr Pollard pointed out that, even if the Dinhs did not grow grapes, the Plantation was larger than the land they were then leasing. Accordingly, it would still be expected that their overall income would be higher than the Dinhs' 2008 Performance.[392]

1. Ms Dinh asserted that Mr Pollard had double‑counted the land taken up by the grape vines.
2. Ms Dinh submitted that Mr Pollard had 'grossed up' the income that would be received on the Plantation by 15% to allow for the fact that the Plantation was 15% larger than the land the Dinhs were then leasing. Ms Dinh asserted that Mr Pollard had admitted this in his evidence.
3. Ms Dinh submitted that, in grossing up the income, Mr Pollard had not allowed for the fact that some of the Plantation area was taken up by grapes. She submitted that, because Mr Pollard had also added $200,000 for grape income, he had double‑counted the land covered by the grapes.[393]
4. Mr Pollard did not double‑count the land. As explained earlier, Mr Pollard did not 'gross up' the income that would be received on the Plantation by 15% to allow for the fact that the Plantation was 15% larger than the leased land. For his estimate of income from crops other than grapes, Mr Pollard used a figure that was slightly less than the Dinhs' 2008 Performance figure, which was the income the Dinhs had received on the leased land. He did not 'gross up' this figure by any amount.
5. Further, he did not 'admit' that he had.[394]
6. Mr Pollard used the same total of income from produce in Table 2 as he used in the Projected Performance in Table 1. The only difference in the total income figure came from the addition of rental income from the Perth property.
7. I therefore reject this submission.

1. I am not satisfied that Mr Pollard's Projected Performance was inadequate or insufficiently supported by what he had regard to. On the contrary, it was a detailed and careful analysis based on, among other things, the Dinhs' historical performance on their leased land and Mr Wainwright's performance on the Plantation. To the extent Mr Pollard relied on information from the Perth Market Authority, there is no evidence, or suggestion, that this was an unreliable source.
2. For completeness, I note that there was no evidence, or even a suggestion, that any of Mr Pollard's projected estimates were inaccurate.

1. Mr Pollard also completed a 'Credit Risk Rating' questionnaire.[395] He explained that it assessed the probability of default. He said it was measuring the Bank's risk.[396]
2. Mr Pollard said that some of the questions were figure driven, and others were driven by judgment.[397]

1. Ms Dinh criticised Mr Pollard's answers to three of the questions on the questionnaire - questions 1, 5 and 11.[398] Questions 1 and 11 were criticised on the same basis and I will deal with them first.

1. Question 1 on the questionnaire asked for an assessment of sale trends. Mr Pollard assessed this as 'increase', on the basis that 'Increased yield in [grape] production and Efficiencies in production from improved Growing capability from Crop nets will increase sales'.[399]
2. Question 11 asked for an assessment of productivity trends. Mr Pollard assessed this as 'increase', on the basis that 'Clients will be moving into a far more developed Plantation to what they had in the past. Crop Netting and Maturing Vines should improve productivity'.[400]
3. In his commentary, Mr Pollard had noted, under the heading 'Increased Yield from Property improvements':[401]

With the Introduction of Crop Netting, yield is significantly improved as it reduces sun and pest damage thus increases quality fruit and Veg and reduces shrinkage and seconds

1. Mr Pollard gave evidence that, in noting that crop netting should improve productivity, he was comparing the position the Dinhs would be in on the Plantation with their current position on the leased land. It appears that the Dinhs did not have crop netting on the leased land.[402]
2. Ms Dinh criticised Mr Pollard's answers to these questions on three bases. First, that Mr Pollard could not remember where he had obtained the information to support his conclusion that productivity was likely to improve. Second, that the Bank did not produce any 'supporting information'. Third, that Mr Pollard was largely just making assumptions.[403]
3. It is certainly true that Mr Pollard is now unable to remember where he obtained particular pieces of information. He surmised that some information came from the Dinhs and other information from the Perth Market Authority website. He also had the financial records for the Dinhs and Mr Wainwright.
4. It is unsurprising that Mr Pollard cannot now remember where he obtained particular pieces of information. However, there was no suggestion that he fabricated any of the information he recorded in his analysis, or that any of the information was inaccurate. On the face of his loan application documents, it appears that he obtained a great deal of information. This included detailed financial information from the Dinhs and Mr Wainwright, the dimensions of the leased land and the Plantation, the absence of crop netting on the leased land and its presence on the Plantation, and the type, volume and maturation stage of the grapes on the Plantation.
5. Mr Pollard's inability to now recall where he obtained the information is not relevant to an assessment of whether the loan was prudent. Further, in the absence of any suggestion that the information was wrong, it would be difficult to conclude that his reliance on that information caused the Bank to approve the loan when a prudent banker would not have.
6. In relation to Ms Dinh's submission that the Bank did not produce any 'supporting information', it was not entirely clear what Ms Dinh was asserting ought to have been produced and what inference she was asserting should be drawn from the failure to produce it. It appears that Ms Dinh was submitting that the Bank ought to have verified that Mr Wainwright's financial records were accurate and should have produced documents to prove that it had done that.[404]
7. Ms Dinh did not adduce any expert evidence as to what a prudent banker would have done. In particular, there was no evidence that a prudent banker would have verified this information. In the absence of such evidence, I would not conclude that a prudent banker would have verified it.
8. Other information appeared to be based on what the Dinhs told Mr Pollard, his own knowledge and observations, and information from the Perth Market Authority website. At the time of this loan, Mr Pollard was working in Carnarvon, primarily handling clients who operated plantations or provided services to plantations.[405] Again, I am not satisfied that a prudent banker would have further verified this information.
9. It is true that Mr Pollard made some assumptions in his analysis. For example, Mr Pollard said that productivity would increase because the Plantation was a bigger property and because there was some crop netting. Mr Pollard assumed, in effect, that more produce could be grown on a larger area. Mr Pollard said that productivity would also increase because there was crop netting. He said that crop netting improves the yields and reduces the damage caused by pests. He agreed, therefore, that he had assumed that productivity would also increase because there was crop netting.[406]
10. There is no suggestion that the Plantation was not larger than the leased land. It was entirely reasonable for Mr Pollard to assume that a larger area would increase productivity.
11. It appears that Mr Pollard was aware that the Dinhs did not have crop netting on their leased land but that there was crop netting on the Plantation. It appears that Mr Pollard was aware of the benefits of crop netting. There is no suggestion he was wrong about any of that. It was entirely reasonable for Mr Pollard to assume that the crop netting would increase productivity.
12. Further, Ms Dinh did not adduce any expert evidence as to what a prudent banker would assume. In particular, there was no evidence that a prudent banker would not have made any of the assumptions made by Mr Pollard. I am not satisfied that a prudent banker would not have made these assumptions.
13. In addition, the anticipated improved productivity from crop nets, while used for the questionnaire, was not used in the Projected Performance assessment. As noted earlier, Mr Pollard used an income figure for the expected crops (other than the grapes) that was slightly lower than the Dinhs' 2008 Performance figure.
14. I dealt with Mr Pollard's assessment of grape income earlier. His assessment that there would be an increased yield in grape production was obviously based on the detailed information he recorded in his commentary. The information is far too detailed to have been simply assumed. For example, it is inconceivable that he merely assumed that there were approximately 2,400 relatively new table grape vines under a shade structure, 1,800 of which were Red Globe and the rest Flame Seedless. It is also apparent that Mr Pollard had Mr Wainwright's financial records for 2007 and his GST returns for nine months up to 31 March 2008. Mr Pollard fully explained his reasoning, and the basis for it, in the loan application.[407] There is no suggestion that any of the information Mr Pollard recorded was inaccurate.
15. I reject Ms Dinh's criticism of Mr Pollard's answers to questions 1 and 11.

1. Question 5 on the questionnaire asked for an assessment of the future repayment capacity of the business. Mr Pollard assessed this as 'good', on the basis that 'Increased Yield in grape Production and improved productivity along with reduction in debt will improve repayment capacity with a healthy surplus to meet incidentals and living expenses'.[408]
2. The yield and productivity components overlapped with question 1. Ms Dinh repeated that there was no real basis for Mr Pollard's conclusion.[409] I have already rejected this.
3. In relation to the debt reduction component, Ms Dinh submitted, in effect, that selling the investment properties was not expressed to be a condition in the Loan Agreement, so debt reduction could not validly be taken into account.[410]
4. It is correct that selling the investment properties was not expressed to be a condition in the Loan Agreement. However, as explained earlier,[411] Ms Dinh knew that the loan was being offered for a period of only one year to enable her to sell the investment properties in that year. The alternative was that she postpone the purchase of the Plantation until the investment properties were sold, at the risk of losing the opportunity to buy it, and being unable to farm on it in the meantime. In those circumstances, it was entirely appropriate to anticipate that property sales would improve the Dinhs' repayment capacity.
5. I therefore reject Ms Dinh's criticism of Mr Pollard's answer to question 5.

Factoring in the high gearing, break-even income and high risks

1. The Bank took into account a number of factors that were less than positive in its calculation of the probability of default.
2. Mr Pollard assessed the business' profit record in question 2 as '3 - Breakeven'.
3. Question 3 on the questionnaire asked for an assessment of 'the equity of the business'. Mr Pollard assessed this as '3 - Low', giving the reason 'Clients are heavily geared as it stands [however] Post Sale of the 3 properties will improve equity'.
4. Question 4 on the questionnaire asked what the 'historic cash flow after distributions has been'. Mr Pollard wrote 'Over past 12 months due to increase in gearing applicants have had marginal funds after meeting commitments'. He assessed this as '3 - Marginal' (from a choice of 'Good', 'Marginal' or 'Poor'[412]).
5. The calculation of the probability of default also automatically factored in a number of high risk factors. Question 10 asked what the 'business' location and physical attributes' were. Mr Pollard recorded that there was a medium risk for plantations in Carnarvon, with a small risk of cyclone and a risk of flooding. Question 12 recorded that the Bank defined the business' industry risk as vegetable growing. Both answers resulted in assessments of '3 - High Risk'.
6. As the Bank pointed out, high gearing and high risk factors do not mean that the Bank does not lend money. Rather, the Bank takes those matters into account in deciding whether to lend money and, if so, how the loan should be structured. This was what the Bank did in this case.

1. Within the application documents, Mr Pollard set out the total funds available to the Dinhs and the funds required for the purchase of the Plantation.
2. In calculating the latter amount, Mr Pollard allowed $53,100 for stamp duty and fees.[413]
3. In calculating the total funds available to the Dinhs, Mr Pollard recorded that the Dinhs had $17,035 in bank accounts and $50,000 in cash. In his closing address, counsel for Ms Dinh submitted that Mr Pollard's evidence was that he had assumed that the Dinhs had $50,000.[414] While I accept that that interpretation of Mr Pollard's evidence is open, Mr Pollard's evidence was a little more nuanced. This exchange occurred in cross‑examination:[415]

$50,000 cash. That's not a bank account, is it, or is it a bank account that's not with the CBA?‑‑‑I'm not sure. Without looking at the - we would have had that in there as - as an assumption for the - for the settlement.

As an assumption?‑‑‑Yes. Look, obviously, I - I can't recall from - initially, but it's - yes. It's in there for a reason. So we've - we've put it in there.

1. In my view, Mr Pollard's evidence was ambiguous. It is more likely that he simply could not recall why the figure was included. It is unlikely he would have included that figure unless the information came from somewhere. Other evidence suggests that the source of the information was the Dinhs.
2. Ms Dinh was asked in evidence‑in‑chief if Mr Pollard had talked about a facility other than an overdraft facility, in what must have been the meeting in Perth. She replied:[416]

We - at that point in time I had about - sold a block of land in Bassendean. We got about 50,000 remaining as well as - yes, and also about $100,000 that we - that - proceeds from our sales in Carnarvon. So, we got about 150, and then we plan to use 60,000 to pay stamp duty for this - the farm that we are going to buy. Yes. And the remaining is to be used as cash flow in our business.

1. The block of land in Bassendean was not actually sold until December 2009,[417] well after the purchase of the Plantation. However, on two further occasions, Ms Dinh repeated her claim that she had $50,000 from the Bassendean property prior to the purchase of the Plantation.[418]
2. Her evidence in relation to the Bassendean property was very difficult to follow.[419] The only parts that were consistent were that she had only paid $50,000 of the $250,000 purchase price, that her family had been involved in the purchase, that she had received $50,000 from the sale and that this was before she purchased the Plantation. Given that Ms Dinh acted as the family banker, it is quite possible that she did get back her contribution of $50,000 before the property was sold from the other family members involved in the purchase and that this money was available to her prior to the purchase of the Plantation.
3. In any event, on Ms Dinh's own evidence, the Dinhs had about $100,000 in savings from their existing farming business.
4. In light of all of the evidence, I am not satisfied that Mr Pollard simply assumed that the Dinhs had $50,000. It is far more likely that this is what the Dinhs told him.

1. In the application documents, Mr Pollard created a table showing the Dinhs' asset position. This included his estimates of the value of the Dinhs' properties.[420] At that time, he did not have valuations.[421]
2. The application documents included a section titled 'Credit Analysis'.[422] This set out that valuations had to be obtained on the Dinhs' properties as a condition prior to funding.
3. The loan was conditionally approved on 2 January 2009.
4. After conditional approval had been given, Mr Pollard obtained the valuations. The valuations were lower than his estimates. He said that, as a result, he had to resubmit the application.[423]
5. The amended application reflected the valuations, showing the Bank's position would not be entirely secured.[424] There was no impact on the Projected Performance. Mr Pollard used the same figures, including the same buffers, as he had used previously.[425]
6. Mr Pollard said that the lower valuations changed the Bank's risk perspective.[426] As a result, on 16 January 2009, in a revised credit analysis, a credit officer determined that the investment home loans would need to be for 12 months and interest only.[427]

1. In that revised credit analysis, the credit officer recorded that the estimated surplus available to the Dinhs would be only $10,698. It is not obvious to me why the surplus estimate was reduced following the reduced valuations. Nevertheless, the Bank appeared to accept that it had been reduced.[428]
2. Mr Pollard agreed that, during the one year bridging period, the servicing position was 'tight'.[429]
3. Although all of the farm expenses had been allowed for, a surplus of less than $11,000 was, on its face, a very small allowance for living expenses.
4. However, the Bank points out that this was a bridging loan, with the intention that the other properties would be sold. When each was sold, the Dinhs' outgoing commitments would be reduced and the surplus proceeds would provide an additional injection of funds. In the meantime, there was an overdraft to cater for short‑term cash flow issues.
5. Further, as the Dinhs had taken early possession, it could be expected that they would begin receiving income from the farm soon after settlement. They were also receiving rental income from the Perth property (and had two other properties that could have been rented).
6. Although the loan was tight, I am not satisfied that it was imprudent. I will say more about this shortly.

1. For completeness, I note one further matter. In Mr Pollard's spreadsheet of Projected Performance, he recorded a number of cost figures that were said to include a buffer or, in one instance, was entirely a buffer.
2. In the estimate for the cost of 'freight, grading, cartage and packaging', Mr Pollard used a figure that was more than $20,000 higher than the figures in the Dinhs' 2008 Performance and Wainwright's 2007 Performance to allow for the '[i]ncreased cost due to the Grapes being fully productive with Buffer'.
3. In the estimate for 'Fertiliser', Mr Pollard used a figure that was about $5,000 more than the Dinhs' 2008 Performance figure, and about $10,000 more than Wainwright's 2007 Performance figure to allow for 'increased cost in fertiliser prices'.
4. For the item 'Sundry', the Dinhs' 2008 Performance figure was less than $500 (and there was no entry for this item in Wainwright's 2007 Performance figures). Mr Pollard used a figure of $20,000, describing this as 'Buffer'.
5. For the item 'Wages', there was no entry for this item in the Dinhs' 2008 Performance figures. In Wainwright's 2007 Performance figures, there was an entry of just under $30,000. Mr Pollard used a figure of $40,000, writing 'whilst a large portion of the labour will be family, we will include a buffer'.
6. Each of these buffers were repeated in the amended application.[430]
7. Surprisingly, Mr Pollard was not asked any questions about these entries and neither counsel mentioned them in written or oral submissions. If the evidence could have affected my final conclusions, it would have been necessary to have given counsel an opportunity to be heard. However, without having regard to this evidence, I am not satisfied that the Bank acted imprudently or that the Dinhs did not have the capacity to meet the repayment obligations. Therefore, it is unnecessary to give counsel an opportunity to be heard. I will simply ignore this evidence.

1. It was put to Mr Pollard that he was 'pushing for' the loan. Mr Pollard said that the Dinhs wanted the Plantation, so he was doing his best to try and get the loan approved. He agreed that he himself wanted the transaction to go through. He was asked 'Because it would add to your figures, wouldn't it?' He replied '- Well, it - it does. Yes'.[431]
2. Mr Pollard gave evidence that he did not receive a commission for the loan. He said that there was a bonus structure based on various KPIs, one of which was growth. However, another component was risk.[432]
3. I accept Mr Pollard wanted the loan to be approved. I do not accept that it influenced him to take an improper or imprudent approach. Even if I was to accept he was influenced by self‑interest, which I do not, it was not in his interest overall to grant a risky loan.
4. I am satisfied that Mr Pollard acted in good faith.

1. In evaluating the prudence of the loan, it must be considered in the context of all of the relevant circumstances.
2. First, it was a bridging loan. It was intended to be for a period of only 12 months, to give the Dinhs time to sell their other properties. It included an overdraft facility to cater for cash flow issues. Given the number of other properties the Dinhs had, it was reasonable to assume that at least some would be sold relatively quickly, reducing the obligations and increasing the available funds.
3. Second, the Dinhs had an established track record as successful market gardeners.
4. Third, the Plantation was larger and superior to their leased land, and a higher net profit could be expected.
5. Fourth, the Dinhs took early possession on 4 January 2009, giving them time to work on the Plantation before settlement occurred and their payment obligations began. It was reasonable to expect that it would not take them long to begin generating income. (As events transpired, it appears that the Dinhs had watermelons ready to be picked before settlement.[433])
6. Finally, the Bank had no inkling that the Dinhs would say that they could not pay the stamp duty until 16 March 2009, well after the loan had been approved.
7. Ms Dinh submitted that the focus of the Bank was on its security rather than the Dinhs' ability to service the loan.[434] The two are not mutually exclusive. The Bank was clearly concerned to ensure its position was protected. It would be surprising if it was not. However, it is equally clear that the Bank sought to calculate whether the Dinhs would be able to service the loan. Mr Pollard concluded that they would be able to service the loan.[435]
8. Mr Pollard did a great deal of work on the Dinhs' application. He obtained the financial records of the Dinhs and Mr Wainwright. He did not factor in rental income for the properties that were to be sold. He carefully analysed and explained why he predicted increased income. I have explained why I reject the various criticisms of his analysis.
9. Taking all of the circumstances into account, I am not satisfied that the Bank was imprudent in offering the loan. In particular, to pick up the words of cl 25.1 of the Code,[436] I am not satisfied that the Bank failed to exercise the care and skill of a diligent and prudent banker in forming its opinion about the Dinhs' ability to repay the loan. I am also not satisfied that a diligent and prudent banker would have formed the view that the Dinhs could not meet their repayment obligations or even that it was unlikely that they would be unable to meet them.
10. Indeed, I am also not satisfied, as a matter of fact, that the Dinhs could not have serviced the loan. As I will explain, I consider that the failure of the loan was due to the way in which the Dinhs approached their obligations, rather than a lack of capacity.
11. The loan was undoubtedly 'tight'. However, as events transpired, it appears that Ms Dinh's assessment that the business could make the repayments was correct.
12. During the one year term of the loan, the overdraft never exceeded $115,000.[437] This is despite the fact that none of the investment properties were sold during the one year term.
13. Further, within that one year period, there were periods when the overdraft was under or close to its limit. From 1 October 2009 to 23 December 2009, the balance remained under $60,000 and was under $50,000 at times.[438] As previously noted, this was before any of the investment properties were sold.
14. In the two months following the first year, the overdraft increased, peaking at about $142,000. It was then virtually paid off by the proceeds from the sale of the Aveley property. Part of the reason for the increase was because the Bank permitted further funds to be drawn in light of the pending sale.[439]
15. Between 14 May 2010 and 18 January 2011, the overdraft then went up and down, peaking at about $72,000, and was often under $50,000.[440] The Dinhs made their last deposit into the overdraft, with one exception, on 18 January 2011.
16. Further, there were a number of things that the Dinhs did and did not do that impacted the state of the overdraft.
17. First, Ms Dinh did not recover money owed to her by family members (and which Mr Pollard had been told would be recovered) and it appears she continued to lend money to family members. She bought her son a car around the end of 2009 (on the basis that he would repay her by instalments).[441]
18. Second, the Dinhs opened an account at the ANZ bank toward the end of 2009 and income from the farm was deposited there.[442]
19. Third, the Dinhs did not sell any of the properties within the one year term.
20. Fourth, it appears that Ms Dinh gave her son over $20,000 so that he could buy the Landsdale property in November 2010. In addition, it appears that she may have sold it for less than it was worth, admitting that she sold it to him for the amount that the bank was willing to lend him.[443]
21. Fifth, it seems that the Dinhs stopped depositing any money into the overdraft account in early 2011, apart from a single deposit on 23 February 2012. When the third last deposit was made, on 15 December 2010, the overdraft was drawn to $50,217.04.
22. The floods occurred in late 2010 and early 2011, disrupting their farming for approximately six months. By this point, there was no money going into the overdraft (apart from the single deposit in February 2012). It is not surprising that the overdraft blew out of control.
23. For completeness, I note that it is possible that Ms Dinh was making mortgage repayments throughout 2009 in relation to the Bassendean property. If the repayments were interest only, it is likely they would have been about $14,000 annually.[444] However, the evidence in relation to the Bassendean property was unclear, and so I have disregarded this possibility.

1. Ms Dinh is currently in prison, having been convicted of a drug offence.[445] Ms Dinh received the Centrelink disability pension from around 2008 until she went to prison.[446]
2. In cross‑examination, Ms Dinh was asked about her application for the disability pension. She agreed that Centrelink had asked her for some information but denied that they had asked what assets she owned. She said Centrelink had only asked about the value of the house that she was living in. It was put to Ms Dinh on a number of occasions that she did not tell Centrelink about the other houses that she owned. She replied that it was not that she did not tell them but that they did not ask.[447]
3. Ms Dinh was then taken to a Centrelink statement that had been sent to her in August 2008.[448] The statement began with wording in bold asking that the information on the statement be carefully checked and '[if] your circumstances have changed please contact us within 14 days'.
4. The Centrelink statement recorded Ms Dinh's income and asset details as being a savings account with the Bank in an amount of $13 and, under 'Other assets', household and personal effects valued at $6,000. It did not list any of the properties that Ms Dinh owned with her husband.
5. It was put to Ms Dinh that she did not tell Centrelink that she had other assets after receiving that statement. She said:[449]

Yes. That's correct. But those are --- ... properties for my children.

1. It was put to her that the properties were in her name. She said 'Yes. At that point my name was clean, so I could borrow money for those assets'.
2. Ms Dinh was asked if the reason she did not tell Centrelink about the properties after getting the statement was because she wanted to give those properties to her children. She said yes.[450]
3. Ms Dinh said she did not ask her son Andrew or anyone else to translate the Centrelink statement for her. She said she just received it and put it away. She said that 'I know that I receive regular payments. I did not make any complaint about it'.[451]
4. Ms Dinh was asked if she had given Centrelink any information after August 2008. She replied 'No. Centrelink did not ask me anything'.[452] She agreed she had not told Centrelink when she bought the Plantation.
5. It was put to Ms Dinh that she did not tell Centrelink about the overdraft from the Bank in March 2009. She said 'when I bought the farm, I heard that I would have - will have an overdraft account. I didn't see it. That's why I didn't tell Centrelink anything'.[453]
6. Ms Dinh's explanations for why she did not tell Centrelink about her assets were implausible and I reject them. I find Ms Dinh deliberately concealed her true financial position from Centrelink. I infer that she did this so as not to impact her disability pension.[454] This dishonesty affects her credibility as a witness.

1. In 2001, Ms Dinh asked the NAB to lend her and her husband some more money to finish the houses they were building on two of their properties, the Ballajura property and the property at 361 Benara Road, Morley.
2. In cross‑examination, Ms Dinh was shown a NAB Customer Particulars document, which appeared to have been signed on 1 June 2001.[455] She agreed that it had been signed by her husband and herself. She agreed that she had provided information to the NAB through her son Andrew Dinh who was acting as an interpreter. She agreed that she understood that the form contained the information that she had given the bank through her son.[456]
3. The Customer Particulars document recorded that Ms Dinh's employer was Beechboro Butchers, and had been so since 1 May 1999 (about two years before the date of the document). It recorded that her previous employer had been HDT Manufacturers, for three years and two months.
4. When the entries in relation to the butcher were put to her in cross‑examination, Ms Dinh said that there was a butcher there that she had worked at but it was only for a few months and not for two years.[457] Later, when she was being pressed about needing the loan, she said she also borrowed money from friends and sold the butcher business. In this way, it emerged that the butcher business was in fact her husband's business.[458]
5. Ms Dinh agreed that HDT Manufacturers was her son Andrew Dinh's company. She admitted she had not worked there during the years indicated on the document. She said that she would work for them when they needed help to complete some urgent work.[459] Andrew Dinh gave evidence that his mother had never worked for him in that business.[460]
6. The Customer Particulars document recorded that Ms Dinh's current income was $2,400 a month. Ms Dinh said she was not earning that amount of money in 2001 and that at that time she was receiving unemployment benefits.[461]
7. The Customer Particulars document included a declaration that the particulars were true, complete and correct. Ms Dinh said that that passage was not read to her before she signed it and that she signed the form without understanding what it said.[462]
8. I find Ms Dinh deliberately exaggerated her financial position to the NAB. I infer that she did this so as to improve the chance that the NAB would grant the loan.[463] This dishonesty affects her credibility as a witness.[464] As will be seen, it also is part of the evidence from which larger inferences may be drawn.[465]

1. I have already referred to Ms Dinh's repeated claim that she received $50,000 from the sale of the Bassendean property prior to the settlement of the Plantation.[466] In closing submissions, the Bank referred to Ms Dinh's evidence about what she did with the $50,000. The Bank relied on this evidence as one of the reasons why I should reject Ms Dinh's credibility.
2. Ms Dinh said she received $50,000 from the sale, which she deposited into the Bank.[467] She appeared to be saying that she deposited it into an account with the Bank, but that this was not the overdraft account. She said, somewhat inconsistently, that she still had the cheque to be deposited into the Bank and still had documentation on the account that she had put the money into.[468] A call was made for those documents. No such documents were produced.[469] The $50,000 was certainly not paid into the overdraft account and there is no evidence to suggest that it was paid into some other account, apart from her claim, unsupported by the documentation she claimed to possess but did not produce.[470]
3. In my view, there are too many uncertainties about this evidence to warrant giving it significant weight in my assessment of Ms Dinh's credibility. I have decided to disregard it.

1. Ms Dinh initially did not tell Mr Pollard about all of the properties that they owned when he first asked. He later discovered that the Dinhs owned more properties. However, he did not discover, and she did not tell him, that she owned the Bassendean property. Mr Pollard could not have discovered that she owned it. This is because she had purchased it in her Vietnamese name,[471] even though she bought it five years after she had changed her Vietnamese name to Anne Dinh by deed poll.[472]
2. The Bank submitted that her failure to disclose ownership of this property to Mr Pollard meant that he was unaware of the Dinhs' true level of financial commitment.
3. The Bank also pointed out that it was not known whether Ms Dinh owned, or had owned at the relevant times, other properties in her Vietnamese name. However, in my view, this is speculative and I do not give any weight to that suggestion.
4. Nevertheless, I accept the Bank's submission that Ms Dinh's failure to disclose to Mr Pollard all of the properties she owned is relevant. It is relevant even though Mr Pollard did ultimately find out about all of the properties, apart from the Bassendean property, prior to the loan being granted and even though Ms Dinh may have divested herself of her obligations in relation to the Bassendean property before the settlement of the Plantation. It is part of the evidence from which it may be inferred that Ms Dinh wanted the loan and did not want the Bank to reach a negative conclusion as to her capacity to repay it. It may be inferred from the whole of the evidence that she wanted to make her own assessment of her capacity to meet the repayments, because she believed she was in the best position to make that assessment. She knew the full picture of their resources, obligations and the likely income that would be generated from the business. She knew what repayments they could and could not afford.
5. Other evidence supporting these inferences includes the misrepresentations made to the NAB in the 'Customer Particulars Document' as to her level of income.[473]

1. I have already set out Ms Dinh's evidence in relation to the relevant events and explained why I did not accept significant parts of it.
2. I have explained why I found that, at times, Ms Dinh was seeking to exaggerate her vulnerability. In particular, in relation to the transaction documents she signed in the Gateway meeting, Ms Dinh sought to give the false impression that she had no opportunity to find out what the documents said, and simply had to trust Mr Pollard. She also sought to give the false impression that she had no capacity to check whether the copies she had been given were the same as the documents that she signed.[474]
3. I have also explained why I concluded that Ms Dinh appeared to be attempting to misrepresent the extent of Mr Pollard's involvement in the events, in an effort to present a picture that everything happened because she simply did whatever Mr Pollard told her to do, and that she was not doing anything independently of him.[475]
4. Further, the Bank put to Ms Dinh several documents she had signed that were not Bank documents, and in which Mr Pollard could not have been involved. These included the settlement documents sent by Ms Casella and the letter her daughter sent to the Ombudsman. Ms Dinh claimed to be unaware of the contents of those documents. This evidence was implausible.
5. In my view, Ms Dinh was acting as an advocate in her own cause rather than a witness.

1. For all of these reasons, I find Ms Dinh was not a credible or reliable witness. I do not accept her evidence.

1. Peter Dinh was shown numerous documents and signatures on documents in his evidence‑in‑chief. He usually said he did not remember the document or did not recognise it. He agreed some signatures were his and others were his wife's. However, on many other occasions, he said he did not recognise signatures that appeared to be his or his wife's, including in relation to some signatures that his wife had identified in her evidence.[476] I find that Peter Dinh did sign each document purporting to bear his signature.
2. Peter Dinh gave evidence that he did not know the meaning of various financial and property terms, including that he did not know what 'settlement' means in a property transaction.[477] Less than two pages of transcript later, this exchange occurred, through the interpreter:[478]

SHEPHERD, MR: And who is Irene Casella?

INTERPRETER (FIRST DEFENDANT): This is the lady who do the settlement.

SHEPHERD, MR: And who does she do settlements for?

INTERPRETER (FIRST DEFENDANT): Yes. Previously, she has done settlement for the properties we bought before.

SHEPHERD, MR: And when you say settlement, what do you understand that to mean?

INTERPRETER (FIRST DEFENDANT): Prepare - prepare the documentation. That she prepared the documentation for us.

SHEPHERD, MR: For what?

INTERPRETER (FIRST DEFENDANT): Yes. To prepare documents for us to buy properties.

1. I do not accept that Peter Dinh did not know what 'settlement' means.
2. As noted earlier, Peter Dinh denied having the conversations with Mr Pollard that were recorded in the Bank's records. I have explained why I find that he did.[479] In my view, Peter Dinh attempted to down‑play his ability to communicate in English.
3. Overall, Peter Dinh was an unsatisfactory witness. I consider that at times he was attempting to assist his wife's case, rather than simply answering questions.[480]
4. To the extent that there were differences between the evidence of Mr Pollard and Peter Dinh, I prefer Mr Pollard's evidence.

1. Like his mother, Andrew Dinh was a sentenced prisoner at the time of giving evidence.
2. There were some unsatisfactory aspects to his evidence. As I identified in the discussion of the facts, I do not accept all of his evidence. Some of that evidence appeared to have been given in an attempt to assist his mother's case, rather than simply answering questions.[481] At other times, it appeared his memory was simply faulty.[482] That said, on the whole, I prefer his evidence to that of his parents where there is any conflict.
3. To the extent that there were differences between the evidence of Mr Pollard and Andrew Dinh, I prefer Mr Pollard's evidence.

1. Ms Lee's evidence was limited[483] and neither side relied on it.

1. Mr Pollard has worked for the Bank since 2000, apart from three years with Bankwest and 14 months with Elders.[484] He has a commerce degree in finance and marketing.[485] In 2008 and 2009, he was working in Carnarvon in agricultural lending, primarily handling clients who operated plantations or provided services to plantations.[486]
2. Not surprisingly, he was not able to remember much about his specific interactions with the Dinhs. He gave evidence that he had done approximately 1,000 loan applications since then.[487] Accordingly, for the most part, he had to rely on the records that had been entered into the Bank system or on his usual practice.
3. The primary attack on Mr Pollard was not directed to what he said in evidence but to how he had in fact assessed the loan and whether he had acted as a prudent banker. This was discussed earlier[488] and is not relevant to my assessment of his reliability and credibility as a witness.

1. Mr Pollard was cross‑examined about his use of the Bank's record system.
2. Mr Pollard agreed he did not always make a note of every client interaction in the Bank recording system 'ComSee'.[489] He agreed it would have been 'best practice' to do so, so that there would be an audit trail.[490]
3. Mr Pollard agreed that he did not make any notes in ComSee about his interactions with the Dinhs before the loan was approved. He said he would have made notes at the time for the purposes of the application, which would be kept in a paper file. He said he would have destroyed those notes when they were no longer needed. He thought that would probably have been after settlement.[491] Mr Pollard agreed the Bank's records indicated that he had not made any notes in ComSee until 6 January 2009.[492]
4. Counsel for Ms Dinh was critical of Mr Pollard's note taking.[493] However, in closing submissions, he did not submit that this had any particular impact on Mr Pollard's reliability and credibility. It was certainly not suggested that I should find him to have been an untruthful witness.[494]
5. I accept that Mr Pollard's use of the Bank's recording system was imperfect. However, it does not affect my assessment of his reliability and credibility.
6. Mr Pollard was also cross‑examined about his conduct of the loan more generally,[495] but no comment was made about this by Ms Dinh's counsel in his closing address.
7. The only substantial attacks on Mr Pollard as a witness were the propositions that he had made up one record and that he had not had the conversations with Peter Dinh that he had recorded. I have already explained why I reject both of these propositions.[496]
8. Mr Pollard frankly acknowledged having little independent recollection of the details of his interactions with the Dinhs. However, what he entered in the Bank's records at the time was, with those exceptions I have mentioned, not challenged. Mr Pollard's oral evidence was supported by the Bank's records, and not only those in which he was recording his interactions. There were, for example, numerous emails from Andrew Dinh. There were also documents signed by Mr and Ms Dinh without Mr Pollard's involvement, such as the refinancing documents.
9. Mr Pollard presented as a witness seeking to honestly answer questions. He did not appear to be defensive.
10. I find Mr Pollard to have been a truthful and reliable witness.

1. Counsel for Ms Dinh made a 'Jones v Dunkel[497] submission' about the Bank's failure to call Ms Regan, Mr Pollard's analyst.
2. The Bank's failure to call Ms Regan would only permit an inference to be drawn that her evidence would not have assisted the Bank. This would allow me to more readily draw any inference fairly to be drawn from other evidence. However, it would not fill gaps in the evidence or convert conjecture and suspicion into inference.[498]
3. The only inference Ms Dinh identified could be drawn from the Bank's failure to call Ms Regan was that she would not have been able to say that there was an agreement with the Dinhs that the three investment properties would be sold within the first year.[499] Even if that inference is drawn, it would not assist Ms Dinh's case. The evidence showed that it was Mr Pollard who was the primary and almost exclusive communicator with the Dinhs on behalf of the Bank. That Ms Regan was not aware of Mr Pollard having told Ms Dinh this would not detract from his evidence (and Ms Dinh's own evidence).[500]

1. The Code is a voluntary code of conduct which sets standards of good banking practice.[501] Its provisions applied to the Loan Agreement[502] and it was common ground that the provisions had effect as contractual warranties.[503]
2. Ms Dinh pleads[504] that the Bank breached its contract with her by breaching cl 2.2, cl 2.1(d) and cl 10.2(b), and cl 25.1 of the Code.

We will act fairly and reasonably towards you in a consistent and ethical manner. In doing so we will consider your conduct, our conduct and the contract between us.

1. Ms Dinh pleads that the Bank breached cl 2.2 by failing to act fairly towards her in three ways. Ms Dinh submitted that, had the Bank not breached cl 2.2, she would not have entered into the Loan Agreement.[505]

1. First, Ms Dinh pleads that the Bank breached cl 2.2 by failing to ensure that she understood the nature and terms of the proposed Loan Facility and mortgages and the nature and effect of a bill facility and an overdraft facility.
2. Ms Dinh's case was that, in effect,[506] because of the Bank's failure, there were various matters that she did not understand and, if she had understood them, she would not have entered into the Loan Agreement.

1. As noted earlier,[507] counsel for Ms Dinh eventually accepted that Ms Dinh did know what an overdraft was, but said she did not know that she would not have control of the funds in the overdraft. She did not know, he submitted, that the repayments to the various property loans would effectively be taken out of her hands, by being paid automatically out of the overdraft.
2. As explained above,[508] I find that Ms Dinh did know this before she signed the Loan Agreement.
3. In any event, even if I am wrong about that and Ms Dinh did not know this, I am not satisfied that she would not have entered into the Loan Agreement if she had known.
4. Counsel for Ms Dinh did not identify any reason why this knowledge may have caused her to not want to enter into the Loan Agreement. Ms Dinh did not give evidence that she would not have entered into the loan if she had known there would be automatic repayments of her obligations. It is not obvious why this would cause a potential borrower to refuse a loan. Nor did counsel identify any other basis upon which it could be said that she suffered a loss from her alleged lack of knowledge.[509]
5. Counsel accepted, indeed urged in a different context, that Ms Dinh was a person who met her obligations.[510] With her experience and knowledge, Ms Dinh knew that a failure to pay mortgage repayments could have consequences. She knew that she could not access more money than the limit of the overdraft allowed. She knew the Bank had refinanced all of their properties and had securities over them.
6. Ms Dinh believed they could afford the monthly repayments that would flow from all of their borrowings, even before the Bank reduced the obligations to repay the various home loans from capital and interest to interest only.
7. For these reasons, I am not satisfied that, even if Ms Dinh did not know that the Bank would meet her obligations under the various loan agreements from the overdraft, she would not have entered into the Loan Agreement if she had known this.

1. I have already explained why I find that Ms Dinh knew that the Bank required her to sell the three investment properties within the one year term of the loan.[511]
2. Further, in my view, even if she did not know she had to sell those properties within the one year term, she still would have entered into the Loan Agreement if she had been told that she had to do this. Ms Dinh had the intention, before even approaching the Bank, of selling two of them, the Aveley and Dianella properties. She had bought the third, the Landsdale property, for her son Yuong Dinh because he was not able to borrow the money himself. She sold that to her son after the house had been constructed on the block. There was no suggestion that she was reluctant to sell those properties.[512]

1. In closing submissions, counsel for Ms Dinh said that the Bank failed to ensure she understood the Bank was going to refinance the loans with other lenders.[513]
2. I have already found that Ms Dinh knew that the Bank was going to refinance those loans.[514]

New home loans were one year interest only loans

1. As noted earlier, counsel for Ms Dinh also submitted that Ms Dinh did not know, and should have been told, that her home loans were being refinanced to one year loans with interest only repayments.[515]
2. I have already explained why I do not accept she did not know this.[516]
3. In any event, even if she did not know this, I would not infer that she would not have entered into the Loan Agreement if she had known. At the end of the year, Ms Dinh would be free to refinance the home loans of the unsold properties. The effect of the Bank's loan was simply that the Dinhs would only be required to repay the interest on the home loans and then refinance after the year expired. They were not prevented from paying more if they had the capacity to do so after meeting their obligations. I am not satisfied that, even if Ms Dinh did not know that her home loans were being refinanced to one year loans with interest only repayments, she would not have entered into the Loan Agreement if she had known this.

1. Before leaving this topic, I will briefly address a submission repeated by Ms Dinh that the Bank changed the 'goal posts' as to the conditions of the loan during the course of the evaluation of the loan and failed to tell Ms Dinh about the changes.[517]
2. Logically, failing to tell Ms Dinh of changes could only be significant if Ms Dinh had been told about the initial position. I have already set out my findings as to what Ms Dinh was told and what she knew. I am not satisfied that she was told anything initially that was inconsistent with the final terms of the loan and about which she was unaware.

1. I am not satisfied that Ms Dinh did not understand the essential nature, terms and effects of the Loan Agreement, the Bill Facility, the overdraft and the mortgages.
2. First, as set out earlier, Ms Dinh knew a lot about financing and had considerable experience in property transactions. Describing her as simply a 'farmer' is an inadequate description.
3. Second, apart from the terms Ms Dinh denied being aware of, Ms Dinh did not give evidence that there was something that she did not understand about the nature, terms and effects of the bill facility, overdraft account and mortgages. For the most part, she was not even asked. She was asked if she knew what an overdraft was, and it was ultimately accepted that she did know. Indeed, Ms Dinh's financial experience was such that she said she asked her son why she had to sign so many documents when it was 'just a simple overdraft'.[518]
4. Third, Ms Dinh well understood how mortgages worked. Further, Ms Dinh had previously entered into loan agreements with the Bank secured by mortgages on identical terms.[519]
5. Fourth, as noted earlier,[520] I find that Mr Pollard followed his usual practice of giving a simple explanation of the terms of the agreement.
6. Fifth, I have found that Ms Dinh knew that the other properties had to be sold within the one year term, knew that the Bank was refinancing the loans held with other lenders and knew the new home loans were interest only, one year loans.
7. Further, I am not satisfied that there was anything that Ms Dinh did not know that, if she had known, would have caused her not to enter into the Loan Agreement.

Failed to allow her an opportunity to take advice (cl 2.2)

1. The second basis upon which Ms Dinh alleges that the Bank breached cl 2.2 is her allegation that the Bank failed to allow Ms Dinh an opportunity to take legal or financial advice about the proposed Loan Facility and the Mortgages.[521]
2. Ms Dinh had the opportunity to get advice. Ms Dinh signed the Mortgages and a version of the Loan Agreement on 12 February 2009. If she had asked for time to review the documents before signing them, Mr Pollard would have given her time. She was given copies. She signed the final version of the Loan Agreement on 4 March 2009. Settlement did not occur until 20 March 2009.
3. I am not satisfied that the Bank failed to allow Ms Dinh an opportunity to take legal or financial advice about the proposed Loan Facility and Mortgages.

Failing to comply with the Bank's policy for witnessing documents (cl 2.2)

1. The third basis upon which Ms Dinh alleges that the Bank breached cl 2.2 is her allegation that the Bank failed to comply with the Bank's policy for witnessing documents executed by a person illiterate in English.
2. It is unnecessary to consider the scope and effect of cl 2.2.[522] This is because I am not satisfied that Mr Pollard did not comply with the policy. I am also not satisfied that, even if he breached the policy, Ms Dinh suffered any loss.
3. The Bank's policy applied wherever a Bank employee was a witness to a document and had to read to a person who was blind, illiterate or illiterate in English. The policy relevantly required the employee to provide a simple explanation of the document.[523]
4. The only documents Mr Pollard witnessed were the Mortgages (being the mortgages in relation to the Plantation, the Ballajura property and the Dianella property).[524]
5. I am satisfied that Mr Pollard gave Ms Dinh a simple explanation of the Mortgages. Mr Pollard no longer has a memory of the Gateway meeting. However, he gave evidence of his usual practice where customers are going to sign loan documents. This included, in relation to mortgages, an explanation that 'These are the mortgages. These are what link the properties to the loan and this is obviously what the bank has, you know, to effect its security'.[525] Given Ms Dinh's experience in the property market, in particular her experience with mortgages, this was an adequate explanation.
6. In any event, it is difficult to see how a failure to explain the Mortgages to her could have caused a loss.[526] Ms Dinh did not suggest she did not understand the Mortgages. As I have indicated elsewhere,[527] Ms Dinh clearly understood what a mortgage was, and had previously entered into mortgages on the same terms.

Clause 2.1(d) and 10.2(b) - failing to provide information in Vietnamese

(a) continuously work towards improving the standards of practice and service in the banking industry;

(b) promote better informed decisions about our banking services:

(i) by providing effective disclosure of information;

(ii) by explaining to you, when asked, the contents of brochures and other written information about banking services; and

(iii) if you ask us for advice on banking services:

(A) by providing that advice through our staff authorised to give such advice;

(B) by referring you to appropriate external sources of advice; or

(C) by recommending that you seek advice from someone such as your legal or financial adviser;

(c) provide general information about the rights and obligations that arise out of the banker and customer relationship in relation to banking services;

(d) provide information to you in plain language; and

(e) monitor external developments relating to banking codes of practice, legislative changes and related issues.

The terms and conditions of our banking services will ... be in English and any other language we consider to be appropriate.

1. Ms Dinh alleges that the Bank breached cl 2.1(d) and cl 10.2(b) of the Code by failing to provide information in Vietnamese or with translation and interpretation.[528] Ms Dinh submitted that, had the Bank not breached these clauses, she would not have entered into the Loan Agreement.[529] I do not accept that the Bank breached these clauses or, if it did, that Ms Dinh would not have entered into the Loan Agreement.
2. The obligations in cl 2.1(d) and cl 10.2(b) are not obligations to provide information in the language of the client. Clause 2.1(d) is an obligation to provide information in plain language. Clause 10.2(b) is an obligation to provide information in English and in any language the Bank considers to be appropriate.
3. There was no reason for Mr Pollard to think the documents should be provided in Vietnamese or with translation and interpretation.
4. First, Ms Dinh had a trusted fluent interpreter, her son Andrew Dinh, who could translate anything she desired.
5. Counsel for Ms Dinh submitted that this was inadequate, as '[c]ommercial translation ... requires different skills from someone who just knows both languages'.[530]
6. Even accepting that assertion from the bar table, Andrew Dinh did not need to be a financial expert or commercial translator to be able to translate the words into Vietnamese. Ms Dinh had considerable financial expertise, and would not have needed her son to explain concepts to her. There was no evidence that Andrew Dinh was ever unable to translate something to her or that she did not understand something he had told her.
7. Second, Ms Dinh presented herself to the Bank on the basis that her son would translate for her and act as the intermediary. When Mr Pollard asked for something to be done, it got done.[531]
8. Third, there is no suggestion that Ms Dinh ever asked for documents to be translated.
9. Fourth, Mr Pollard was aware of Ms Dinh's experience in acquiring properties, entering into home loans and providing securities.
10. In those circumstances, the Bank's failure to provide information in Vietnamese or with translation and interpretation did not breach cl 2.1(d) or cl 10.2(b) of the Code.
11. Further, even if the Bank had breached these clauses, I am not satisfied it would have caused a loss. I am satisfied that Ms Dinh fully understood the essential terms of the documents and that it would have made no difference if she had them in Vietnamese. Ms Dinh would still have entered into the Loan Agreement.

Clause 25.1 - Did not properly assess her capacity to repay

Before we offer or give you a credit facility (or increase an existing credit facility), we will exercise the care and skill of a diligent and prudent banker in selecting and applying our credit assessment methods and in forming our opinion about your ability to repay it.

1. Reflecting the terms of cl 25.1, Ms Dinh pleads that the Bank breached it by failing to exercise the care and skill of a diligent and prudent banker in selecting and applying its credit assessment methods to Mr and Ms Dinh and in forming an opinion about their ability to repay the Loan Amount and any other credit facility. Ms Dinh submits that she suffered a loss as a result, because, had the Bank not breached this clause, the Bank would not have offered her the loan.[532]
2. In Doggett v Commonwealth Bank of Australia,[533] the Victorian Court of Appeal was considering an appeal from a trial judge's findings that a bank had breached cl 25.1 and that, if the bank had not breached cl 25.1, the bank would not have offered the loan.
3. The bank had formed the opinion that the borrower had the ability to repay the loan. The trial judge found that the bank had shown a significant lack of care in forming that opinion. The trial judge found that, if the bank had exercised proper care in forming its opinion of the borrower's ability to repay, it would have realised that the borrower would not be able to service the loan.
4. Each member of the Court of Appeal upheld the trial judge's finding of breach. The court was divided, however, on whether the breach caused a loss.
5. McLeish JA said:[534]

[163] Clause 25.1 does not presuppose or require that a bank must form an opinion that a borrower will be able to repay the loan. Rather, cl 25.1 requires care in the formation of an opinion as to whether a borrower will be able to repay the loan. The bank may take due care in forming an opinion as to whether a borrower can repay a loan and decide that, although it is possible that the borrower may not be able to repay the loan, it will offer the loan in any event. That may be, for example, because additional resources can be obtained by the borrower before the loan proceeds or during its term. Or it may be because other financial resources, not immediately available to the borrower, would in the event of default be available to the bank (in particular by way of security or guarantee arrangements). There is nothing inconsistent with cl 25.1 in a bank discharging its obligation in that way. It is inherent in the assessment process that it may reveal the need for steps to be taken to ensure that the overall proposal is acceptable to the bank before the loan proceeds.

[164] In other words, the failure of the Bank to exercise due care and skill, which the judge identified, went to the manner in which it applied its credit assessment methods and formed its opinion in evaluating Dogvan's financial position, but not necessarily to the decision to advance the loan. Clause 25.1 is concerned with those processes and the forming of that opinion. It does not prescribe a precondition to the advancing of a loan, or the content of the opinion which must be formed before that is done, only the level of care and skill with which the exercise must be undertaken.

[165] It therefore does not necessarily follow that, if the Bank had complied with cl 25.1, it would not have offered Dogvan the bill facility.

1. McLeish JA found that the appellants had not proved that the bank would not have offered the loan to the borrower if it had not breached cl 25.1. His Honour said that there was no evidence that the loan would have been refused if the mistakes had not been made and said that the bank was entitled to take into account other sources of funding.
2. The other members of the court agreed with McLeish JA's analysis of the Code.[535] However, they disagreed with his Honour's conclusion on causation. Whelan JA, with whom Garde AJA agreed, said that it would not ordinarily be doubted that a bank would not make a loan to a borrower who had a demonstrated incapacity to meet the required repayments by a significant margin. Whelan JA found that, if the bank had exercised the care required by cl 25.1, the bank would have known that the borrower had no working capital and had a demonstrated incapacity to pay by a significant margin. Whelan JA held that it was improbable that the bank would have made the loan if it had known that.[536]

1. Earlier, I explained why I was not satisfied that the Bank failed to exercise the care and skill of a diligent and prudent banker in selecting and applying its credit assessment methods and in forming its opinion about the Dinhs' ability to repay it.[537]

If the Bank did breach cl 25.1, did that cause a loss?

1. If I am wrong about that, and the Bank did breach cl 25.1, it would be necessary to determine whether Ms Dinh suffered a loss as a result. In this context, this would require a determination of whether, if the Bank had not breached the clause, the Bank would not have offered her the loan.
2. This conclusion does not follow inevitably from a finding of breach.[538] However, Ms Dinh's case was that, if the Bank had not breached the clause, it would have known that she had a demonstrated incapacity to meet the required repayments. She said that it may be inferred that the Bank would not have made the loan if it had known that.[539]
3. Given what was said in Doggett by Whelan JA, with whom Garde AJA agreed, I will assume that that inference should be drawn. The question then becomes whether, if the Bank had not breached cl 25.1, it would have known that the Dinhs had a demonstrated incapacity to meet the required repayments.
4. On the findings I have made, I am not satisfied that a diligent and prudent banker would have known this or even that it was unlikely that the Dinhs would be unable to meet the required repayments.[540] However, if I am wrong to find that the Bank did not breach cl 25 then, depending on the way in which the clause was breached, it is conceivable that a diligent and prudent banker would have formed the view that the Dinhs could not meet their repayment obligations. It will only be possible to determine this once any error is identified.

1. If cl 25.1 was breached, Ms Dinh would be entitled to an award of damages that, so far as money can do, would put her in the position she would have been in if it had not been breached.[541] As already noted, Ms Dinh claims that the Bank would not have offered the loan if it had not breached the clause. If that finding had been made, it would have been necessary to assess what position Ms Dinh would have been in if the loan had not been offered.
2. If the loan had not been offered, Ms Dinh would not owe the Bank money. Therefore, Ms Dinh submits that her damages should be set‑off against the Bank's claim and would extinguish that claim.
3. Ms Dinh submits that she should be left in the same position she was in at the time the loan was entered into.[542] Ms Dinh also submits that any benefit she received from the loan should be disregarded.
4. Initially, counsel for Ms Dinh submitted[543] that the 'effect of the cases' was that the benefits should not be taken into account, and cited Doggett.
5. When pressed to support this proposition, counsel for Ms Dinh appeared to withdraw any reliance on authorities.[544] Instead, he argued that she had not actually received any benefit, when her pre‑loan position was compared to her post‑loan position. Ms Dinh pointed out that, both before and after the loan, she and her husband had been earning an income from farming and had two residences in which to live - the Plantation and the Ballajura property.[545] I also accept that the Dinhs' farming business was profitable and that they were able to meet their property loan obligations.[546]
6. However, Ms Dinh did receive benefits as a result of the Loan Agreement. Compared to her pre‑loan position, she had the certainty of owning the land on which they lived and worked, compared to being on leased land. The Plantation was also better farming land and it is likely that it generated more income than the leased land. In addition, if the Dinhs obtained finance from another source, but settlement was further delayed, they would have been liable for the additional penalty interest that would have continued to accrue.
7. In my view, any benefit would need to be taken into account in any assessment of damages for breach of contract.[547] To ignore any such benefit would put Ms Dinh in a better position than she would have been in if the contract had not been breached.

1. Ms Dinh asserts that the Bank engaged in misleading or deceptive conduct in contravention of s 12DA(1) of the ASIC Act.[548]
2. Ms Dinh pleads that the Bank engaged in this conduct by making three representations. It will be recalled that Ms Dinh withdrew her allegation in relation to the First Representation during the trial.
3. In relation to each of the remaining alleged representations, Ms Dinh must establish that:

(2) she suffered a loss 'by' the conduct.[549]

1. It was common ground that, if made, the Second Representation was false.
2. The Third Representation was an alleged representation as to a future matter. If it was made, it will be taken to have been misleading if the Bank did not have reasonable grounds to make it.[550]

1. Ms Dinh pleads that the alleged Second Representation occurred in a meeting in February 2009. However, it was accepted that the meeting could only have been the Perth meeting in late 2008.
2. The alleged Second Representation is that, at that meeting, Mr Pollard, acting with the authority of the Bank, represented to Ms Dinh that the Bank did not require the refinancing of any of the property loans held by other lenders.[551] Although the pleading was not entirely unambiguous, it appeared that it was based on an allegation that Mr Pollard had said words to the effect that additional security beyond a mortgage over the Plantation would not be required.[552]
3. There was no evidence, from any witness, that Mr Pollard said this, and it was not put to him that he did.[553]
4. When I raised this with counsel for Ms Dinh in his closing address, he submitted that, as Ms Dinh had given evidence before Mr Pollard,[554] the Bank was obliged to ask Mr Pollard in his evidence‑in‑chief whether he had said that additional security would not be required. Counsel for Ms Dinh submitted that, as Mr Pollard had said he did not remember what was discussed in that meeting, he was not required to prompt Mr Pollard into a specific denial in cross‑examination.[555]
5. When I reminded counsel that Ms Dinh had not given any evidence that Mr Pollard had said that additional security would not be required, he submitted that there was, in effect, misleading conduct by silence. He said this arose from Ms Dinh's evidence that Mr Pollard had proposed that they transfer all of their property to the Bank, and that she had told her son 'to tell Mr Paul Pollard we do - do not want this arrangement because it will cost us money. We just wait for us to sell the properties and then for us to have money to buy - enough money to buy that market garden farm'.[556] He said that, as Mr Pollard did not expressly tell Ms Dinh that they were going to refinance all the properties, this was misleading conduct by silence. Counsel accepted that this was not how the case had been pleaded. I indicated that he would need to make an application to amend the pleading if he wished to pursue this argument.[557]
6. Later that day, counsel made an application to amend the pleading. I refused leave, giving oral reasons.
7. In any event, had leave been granted, I would not have found there was misleading conduct by silence. There was considerable evidence that the Bank had communicated to the Dinhs, prior to the signing of the Loan Agreement, that the Bank would be taking securities over all of the properties and that the loans to other lenders would be refinanced. The Dinhs, through their son Andrew and their settlement agent, facilitated that.[558] As I have explained elsewhere, Ms Dinh was well aware that the Bank intended to refinance the loans with the other lenders.[559]

1. The alleged Third Representation was that, by offering to provide the Loan Facility, further or alternatively, in arranging the loan accounts, the Bank represented to Ms Dinh that she and her husband would be able to service any finance provided to them.

1. The Bank submits that an offer to provide a loan and arranging the loan is not a representation that Mr and Ms Dinh would be able to service any finance provided to them. The Bank submits that Doggett at [163] is authority for this proposition.[560] That paragraph was quoted earlier.[561]
2. The paragraph[562] supports the proposition that a bank may, without breaching cl 25.1 of the Code, decide to lend money even if it is possible that the borrower may be unable to repay the loan.
3. However, Ms Dinh did not rely on cl 25.1 in relation to the Third Representation. Ms Dinh's case was simply that, by taking information from her and then offering the loan, the Bank was representing that the Dinhs could service the loan.[563]
4. It is unnecessary to consider this further. That is because, as I will explain, even if it was a representation that the Dinhs would be able to service the loan, Ms Dinh's own evidence compels the conclusion that she did not suffer a loss 'by' the conduct.

1. The word 'by' in this context expresses the notion of causation. The contravening conduct need not be the sole cause of the claimant's loss and damage. It is enough to demonstrate that the conduct was a substantial (rather than negligible) cause of the loss or damage. Reliance and causation may be inferred.[564]
2. Ms Dinh's case was that the Third Representation caused a loss because she relied on it. Ms Dinh's case is that she would not have entered into the loan if the Bank had not represented to her that the Dinhs had the capacity to make the repayments.
3. As noted earlier,[565] Ms Dinh's evidence was to the following effect. She said that Mr Pollard first offered a loan for a 16 year term with an interest rate of 12.9%. She knew they could not afford the monthly repayments that would require, and so they went to walk out of the room. Mr Pollard stopped them, and later came back with an offer for a loan for one year with an interest rate of 3.4%. The repayments would then be about $5,000 ‑ $6,000. She knew they could afford this. The loan went ahead from there.
4. Clearly, Ms Dinh did not interpret the first proposal as a representation that they could afford the repayments, or rely on it as making such a representation. Rather, she relied on her own assessment of what they could repay.
5. In addition, Ms Dinh did not give evidence that she had relied on the alleged representation. On the contrary. This exchange occurred in the examination‑in‑chief of Ms Dinh:[566]

SHEPHERD, MR: If you had known that the bank's assessment - in the bank's assessment it was unlikely you could support the loan, what would you have done?

INTERPRETER: Yes, yes. When - at first when I've been told that the loan term will be 16 years with the interest rate at 12 per cent I did not agree because - I did not agree then at - at first.

SHEPHERD, MR: Yes. My question is if you had known that the bank looked at your information and thought that ... it was unlikely that you would be able to meet the repayments required by the bank over the term of the loan, what would you have done?

INTERPRETER: Yes. When I have been told that the repayments will be around $5000 then I - I think I would be able to - to meet that repayment.

1. In my view, Ms Dinh was confident that she knew what their capacity was and did not rely in any way on any assessment by the Bank.
2. Ms Dinh had the same mindset when seeking the loan from the NAB in 2001. Ms Dinh exaggerated her financial position to the NAB to improve the chance that the NAB would grant the loan.[567] Clearly, she was not relying on the NAB to assess whether she could repay the loan.
3. Counsel for Ms Dinh also sought to argue that Ms Dinh relied upon what she was told about what the repayments would be. This was not the pleaded allegation. In any event, what she was told about that was true. The repayments were about $6,000 a month.[568]

If Ms Dinh did rely on it, did the Bank have reasonable grounds to make it?

1. Assuming the representation was made, if I am wrong to find that Ms Dinh did not rely on it, the next issue would be whether the Bank had reasonable grounds to make the representation at the time.
2. I am satisfied that the Bank did have reasonable grounds to make such a representation. Mr Pollard's analysis indicated that the Dinhs could meet the repayment obligations.[569]

1. Ms Dinh pleads that the Bank acted unconscionably by reason of the alleged breaches of the Code and the misleading conduct. Ms Dinh claims the unconscionable conduct was contrary to s 12CB[570] of the ASIC Act and the general law.[571]

1. The legal principles were not in dispute.[572]

1. To establish in equity that the Bank acted unconscionably, Ms Dinh must prove:[573]

(1) she suffered from a special disadvantage (or special disability) which seriously affected her ability to make a judgment as to her own best interests; and

(2) the Bank unconscientiously took advantage of that special disadvantage.[574]

1. The adjective 'special' emphasises that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his or her own best interests.[575] Lack of English proficiency of itself does not mean the innocent party has a special disadvantage. It will only do so if it seriously affected the person's ability to make a judgment as to his or her own best interests. Ms Dinh did not contend otherwise.

1. Section 12CB of the ASIC Act prohibits unconscionable conduct in connection with financial services.
2. The scope of s 12CB is not entirely settled.[576] However, this does not affect the resolution of this case. That is because Ms Dinh did not run her case on the basis that unconscionability under s 12CB of the ASIC Act set a lower bar than equity or that she did not need to prove that she suffered from a special disadvantage and the Bank unconscientiously took advantage of that. Rather, Ms Dinh ran her unconscionability case on the basis that she suffered from a special disadvantage and the Bank unconscientiously took advantage of that.[577] I also note that both counsel invited me to determine the matter on the basis that the test under s 12CB was the same as the test in equity.[578]
3. In any event, in light of the findings I have made and the matters set out below, any difference in the tests is likely to be academic. I have, however, had regard to the matters listed in s 12CC of the ASIC Act to the extent that they are relevant.

1. Ms Dinh asserts she was under a disability in that she is a farmer and does not speak or read English.[579]
2. I accept that Ms Dinh has been involved in a farming business for a long period of time. However, I would not describe her as a farmer. She was the book‑keeper for the business.
3. I accept that Ms Dinh's English skills are poor.
4. As I will explain, I do not accept her occupation or her lack of English skills seriously affected her ability to make a judgment in her own best interests. Indeed, in the context of this case, I do not consider that her ability was affected in any practical sense.
5. First, Ms Dinh's occupation as a book‑keeper did not detract from her ability to make decisions about whether to enter into the Loan Agreement. On the contrary, it made her better equipped.
6. Second, Ms Dinh had available to her at all relevant times a competent translator.[580] It was common ground that Andrew Dinh was fluent in both English and spoken Vietnamese. The evidence established that Ms Dinh used Andrew Dinh as an intermediary between herself and English speaking people, including Mr Pollard and Ms Casella the settlement agent. Andrew Dinh passed documents, instructions and requests to and from Mr Pollard and Ms Casella and his parents. While Andrew Dinh may have, understandably, felt that he had little choice but to help his parents, there was no suggestion that he ever refused to assist them or failed to translate anything they had asked him to translate.
7. Third, Ms Dinh had ample opportunity to obtain advice. The only time pressure came from the settlement date for the purchase of the Plantation. The Bank did not impose any time pressure. In any event, Ms Dinh first signed a version of the Loan Agreement on 12 February 2009. If she had asked for time to review the document before signing it, Mr Pollard would have given her time. She was given copies of the documents she signed. She signed the final version on 4 March 2009. Settlement did not occur until 20 March 2009.
8. Fourth, Ms Dinh had access to various people who could have assisted her with queries or advice. Both her brother and her niece worked in banks, at least at some stage. She had used Vietnamese‑speaking mortgage brokers on a number of occasions. As a result of the advice of their accountant, Mr and Ms Dinh executed the Trust Deed, a document that had been prepared by lawyers. She also said she sought advice from her accountant as to whether she was permitted to work while receiving the disability pension.
9. Fifth, Ms Dinh had a long history of borrowing money from lending institutions and at more than a basic level. She and her husband had embarked on a property development strategy. She purchased their first home in the early '90s with money from Homeswest. Later, they bought a number of vacant blocks of land and built houses on the vacant blocks. On at least one occasion, they were the owner/builders of the house that was built. On occasions, they borrowed money to fund construction from a different institution to the institution that lent them the money to buy the land. At the time they bought the Plantation, they owned five other properties.
10. Sixth, Ms Dinh understood the fundamentals of banking transactions. She knew what a mortgage was and what an overdraft was. She knew the overdraft carried a much higher interest rate.[581] She knew that, if the Bank took over the other lenders' loans, this would incur fees. She checked bank statements to see which cheques had been presented and which had not, and to work out what she needed to pay on loan accounts.
11. Seventh, Ms Dinh was able to calculate the repayments that would have been required if the interest rate was 12.9%,[582] and she knew they could not afford that.

Did the Bank unconscientiously take advantage of Ms Dinh's disability?

1. Even if I am wrong about that, I do not accept that the Bank took advantage of Ms Dinh's disability.
2. First, the transaction documents were on the Bank's usual terms.[583]
3. Second, the letter of offer contained most of the important terms. It omitted that the Bank was going to refinance the loans from the other lenders. However, as I have explained, Ms Dinh knew this. It omitted, if this was a condition as distinct from an expectation, that the three investment properties had to be sold. Again, as I have explained, Ms Dinh knew this.
4. Third, the Bank did not breach the Code.[584]
5. Fourth, the Bank did not make the alleged Second Representation. If the Bank made the alleged Third Representation, it had reasonable grounds to do so.
6. Fifth, the Bank knew it was dealing with a person with considerable experience in the acquisition of property.
7. Sixth, Ms Dinh presented to the Bank as having a trusted source of translation in her son Andrew Dinh.
8. Seventh, unlike the parents of Vincenzo Amadio,[585] Ms Dinh received a benefit from the loan. The loan enabled the Dinhs to buy the Plantation and then earn an income from it.
9. Eighth, the only time pressure came from the contract of sale for the Plantation. The Bank did not impose any time pressure on the Dinhs or exert any other form of pressure or influence.[586]
10. Ninth, the Bank acted in good faith.[587]
11. Tenth, the Bank's conduct after the Loan Agreement was entered into was supportive and restrained:[588]

(1) The Bank gave the Dinhs considerable support in granting temporary extensions to the overdraft at their request. The Bank accepted at face value, as it was entitled to, the Dinhs' promises of how the extensions would be cleared.

(2) The Bank assisted the Dinhs to make applications for temporary extensions by teaching Andrew Dinh how to do a cash flow analysis.

(3) The Bank did not roll the Bill Facility into a Bills Matured Account until 30 November 2011, despite the Bank's contractual right to do so arising in March 2010. This saved the Dinhs interest.

(4) The Bank did not seek to sell the Dinhs' investment properties as mortgagee after the one year term expired. Instead, the Bank gave the Dinhs time to sell the properties themselves.

(5) The Bank took no court action until March 2014, even though the Dinhs stopped making any deposits into the overdraft account after February 2012 and had not made a payment prior to then since early 2011. This gave the Dinhs a considerable period of time in which to attempt to organise their affairs.

1. I accept that the Bank had a far superior bargaining position to Ms Dinh.[589] However, it was open to Ms Dinh to refuse the loan.
2. Mr Pollard's note‑taking was imperfect. The loan was tight. However, I am not satisfied that the Bank's conduct was unfair or unreasonable in any respect.

1. The Bank's written submissions in reply asserted that Ms Dinh's allegations of misleading or deceptive conduct and unconscionability were time‑barred. The Bank submitted that Ms Dinh amended her pleading to raise these allegations after the applicable limitation periods had expired.[590]
2. Ms Dinh's written submissions asserted that the Bank's submissions were misconceived, having regard to s 81 of the Limitation Act.[591] That section relevantly provides:

(1) A counterclaim in an action (except a counterclaim solely by way of defence) is, for the purposes of this Act, a separate action.

(2) If a defendant in an action makes a counterclaim against a plaintiff in the action the counterclaim is to be taken to have commenced as against the plaintiff when the defendant became a party to the action.

1. Ms Dinh submitted that her counterclaim was solely by way of defence and therefore no limitation period applied. Ms Dinh also submitted that, even if her counterclaim was classified as a separate action, it is, by s 81(2), taken to have commenced as against the Bank when Ms Dinh became a party to the action. This was on 18 March 2014, when the Bank's action was commenced. Therefore, Ms Dinh submitted, her counterclaim is to be taken to have been commenced within the limitation period.
2. In opening submissions, the Bank cited[592] Belgravia Nominees Pty Ltd v Lowe Pty Ltd on this point.[593] That case settled, among other things, that the doctrine of 'relation back' did not apply in Western Australia. It did not address s 81 of the Limitation Act.
3. During the Bank's oral closing submissions, I indicated that my preliminary view was that there was no merit in the Bank's submissions, and gave the Bank the opportunity to make further submissions. The Bank indicated that it did not seek to make further submissions.[594]
4. In my view, s 81 is clear.[595] Ms Dinh's counterclaim is to be taken to have commenced on 18 March 2014. I reject the Bank's limitation defence.

1. I have rejected Ms Dinh's allegations that the Bank breached the Code, engaged in misleading or deceptive conduct and acted unconscionably.
2. Accordingly, I would dismiss her counterclaim and find for the Bank on its claim.

1. In case I am wrong about that, I turn to Ms Dinh's claim for relief.

1. If successful in establishing misrepresentations or unconscionability, Ms Dinh sought to have the transaction documents set aside and be put in the position she was in before entering into the Loan Agreement.
2. For convenience, I will refer to the date on which the Loan Agreement was entered into as the 'Agreement Date'.

1. The Bank submitted that, if the transaction documents were set aside, Ms Dinh should be required to repay the money she borrowed plus interest at a commercial rate.[596] The Bank submitted, in effect, that the interest rate that should be applied is the Supreme Court interest rate.[597]
2. Counsel for Ms Dinh effectively conceded that, if the transaction documents were set aside, the money would have to be paid back.[598] That said, he did not retreat from Ms Dinh's contention that she should be left in the position she was in before the Agreement Date.
3. Where equitable relief in the shape of rescission of a contract is granted, equity does not require complete restitution of the position which existed before the contract. It allows its remedies 'to be utilised to achieve practical restitution and justice'.[599] Equity also allows a court to not set aside the transaction in its entirety or to set it aside subject to conditions, so as to prevent one party obtaining an unwarranted benefit at the expense of the other.[600] The 'concern of equity, in moulding relief between the parties is to prevent, nullify, or provide compensation for, wrongful injury'.[601]
4. Clearly, if the transaction documents were set aside, Ms Dinh would be left with an unwarranted benefit if no conditions were imposed. However, if she had succeeded in proving that the Bank had engaged in misleading or unconscionable conduct, it would not have been equitable to require her to repay the entire debt. This would have left her homeless and without any assets. She would have been far worse off than if she had never entered into the Loan Agreement. This would not have been just.
5. In my view, if she had succeeded in proving that the Bank had engaged in misleading or unconscionable conduct, it would have been appropriate to make orders that would leave her in the same position she was in immediately prior to the Agreement Date, so far as that was possible.

1. Ms Dinh asserts that, prior to the Agreement Date, she had $874,485 in net assets.
2. The figure of $874,485 is the total amount of Mr and Ms Dinh's net equity from their various properties as at the time immediately prior to the Agreement Date. This was calculated by deducting the amount owed to the mortgagor of each property from the value of the property.[602] Mr and Ms Dinh were joint tenants of each property, except the Perth property. Mr Dinh was the sole registered proprietor of the Perth property.
3. The Bank submitted that Ms Dinh did not have an interest in the Perth property, or, at least, that the evidence had not established that she did.[603] It is fair to say that the Bank did not pursue this submission with vigour.[604]
4. The evidence showed that Mr and Ms Dinh treated their assets and income as joint assets and income. I am satisfied that the Perth property was purchased with the joint funds of Mr and Ms Dinh. I am satisfied that a resulting trust arose and that the Dinhs were equitable joint tenants.
5. Ms Dinh seeks to be left with the whole of the net interest she and her husband had at the Agreement Date. This was on the basis that she was a joint tenant and therefore fully seised of the whole of the properties at that time.
6. A joint tenancy may be severed in a number of ways, including by alienation. Alienation may be voluntary or involuntary by bankruptcy.[605]
7. Although Peter Dinh was made bankrupt in 2012, severing the joint tenancies, this occurred after the Agreement Date. Ms Dinh seeks to be returned to the position she was in before the Agreement Date, at which time the joint tenancies had not been severed.
8. I accept that Ms Dinh was fully seised of the whole of the properties at the Agreement Date. However, the joint tenancy was capable of being severed. She was not in the same position as if she was the only person who had an interest in the properties. In my view, it would not have been equitable to put her in the position of owning that sum outright to the exclusion of any other person, when that was not her previous position. In my view, it would have been equitable to put her in a net position of 50% - being $437,242.50.
9. However, Ms Dinh did not adduce any evidence of her current asset position. It is not known, for example, how much money she is owed by family members.
10. Nor would it have been possible, without more evidence, to craft relief to permit her to retain the Ballajura property subject to paying the Bank an amount that would leave Ms Dinh with equity of no more than $437,242.50. Ms Dinh did not provide an updated valuation of that property.
11. Accordingly, had Ms Dinh been successful in obtaining orders to set aside the transaction documents, it would have been necessary to hear from the parties as to how to achieve equity.

1. I give judgment for the Bank and dismiss the counterclaim. As at 23 July 2019, a total of $4,695,933.52 was outstanding on the two accounts.[606] The Bank foreshadowed filing an updated certificate as to the debt as at the date of judgment.
2. I will hear from the parties as to final orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Lots 248 and 284 at 207 McGlades Road, North Plantations, and being the whole of the land described in certificates of title volume 2197 folio 17 and volume 1446 folio 649 - see exhibits 2.132 and 2.133.

[2] One in Ballajura and one in Dianella.

[5] Exhibit 2.92. The 'Terms and Conditions for Commercial Lending Facilities' referred to in the Loan Agreement is exhibit 2.139.

[8] See under the heading 'Signing documents to refinance loans to other lenders - 5 February 2009'. See also 'Did Ms Dinh know the Bank was going to refinance the other loans?'

[9] See under the heading 'The approval of the loan'.

[10] Minute of Proposed Further Amended Defence and Counterclaim filed 11 June 2019 (Defence) [31], [31A].

[11] Exhibit 8.521. This was the version of the code that applied at the time the Loan Agreement was entered into.

[17] Although s 12CC was pleaded, the Second Defendant's Trial Submissions filed 23 July 2019 made it clear that she intended to refer to s 12CB.

[20] Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10 [216] ‑ [217].

[21] See s 12CC(1)(j)(iv) and Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [253].

[22] ts 963 ‑ 964, 1001 ‑ 1002, 1079 ‑ 1081.

[24] It was a call report of 26 May 2009. It is discussed under the heading 'The challenged call report'.

[26] See under the headings 'The Bank advises securities on the other properties will be required - 2 January 2009' and 'Clearance of the extension - April 2009'.

[27] The evidence in this section comes primarily from Ms Dinh - see ts 458 ‑ 459, 543 ‑ 546, 582 ‑ 583, 594 ‑ 602, 606 ‑ 619, 625, 629.

[28] Although Peter Dinh was the sole registered proprietor, Ms Dinh's case is that it was jointly owned.

[29] Exhibit 15. The timing of when she sold the Bassendean property is discussed later - see under the heading 'The $50,000'.

[30] The evidence in this section comes primarily from Ms Dinh - see ts 576 ‑ 579, 630 ‑ 632.

[32] That it was before 21 November 2008 may be inferred from the fact that the loan application (exhibit 1.41) was created on that date. See also ts 1269 and 1310.

[33] Andrew Dinh rated Ms Lee's English at 6.5 or 7 out of 10 - see ts 850.

[34] This was an agreed fact - see Plaintiff's Proposed Statement of Agreed Facts filed 22 July 2019 (Agreed Facts) item 12. Despite the title of the document, it set out the agreed facts - see ts 330.

[35] This was common ground - see ts 1269 ‑ 1270.

[42] Exhibits 1.41, 1.42 and 1.43. See also ts 951 ‑ 963.

[43] See under the heading 'The approval of the loan'.

[44] Counsel for Ms Dinh said it was in the middle to the end of November - ts 1310.

[51] That it was before this date may be inferred from the fact that the loan application (exhibit 1.41) was submitted and conditionally approved on that date. See also ts 1270, 1310.

[55] Exhibit 5.353 (and see the summary in the Particulars of Statement of Claim filed 18 June 2019 (Particulars of Statement of Claim) [3(a)(i)]).

[58] Sang Nguyen was a mortgage broker Ms Dinh used who spoke Vietnamese.

[62] See under the heading 'Assessment of witnesses'.

[63] See under the headings 'The Bank advises securities on the other properties will be required - 2 January 2009' and 'Did Ms Dinh know the Bank was going to refinance the other loans?'

[64] See under the heading 'The Second Representation'.

[65] ts 473. The interest rate for the overdraft was actually 11.14%, with a rate of 13.99% applying to excesses.

[66] This was conceded by Ms Dinh's counsel at ts 1271 ‑ 1272.

[69] See under the heading 'Did Ms Dinh know they had to sell the investment properties?'

[70] ts 489. She gave this evidence in the context of what she understood at the time of settlement, but there was no suggestion that she had not understood this earlier.

[71] ts 488, 490 ‑ 494. See also ts 1160, 1173, 1274.

[72] See under the heading 'Peter Dinh seeks a loan from one of his agents - 19 March 2009'.

[76] See under the headings 'The contract of sale - 10 January 2009' and 'Settlement of the Plantation - 20 March 2009'.

[78] Exhibit 1.44. See also ts 799, 1057.

[80] See under the heading 'English abilities'.

[81] See under the heading 'Assessment of witnesses'.

[82] ts 800 ‑ 801. Ms Dinh gave evidence that Ms Casella did all of their settlements for them. Ms Casella did not speak Vietnamese and would communicate with Ms Dinh through Andrew Dinh - see ts 504 ‑ 505.

[86] See under the heading 'Andrew as an interpreter and conduit'.

[87] See under the heading 'Signing documents to refinance loans to other lenders - 5 February 2009'.

[89] It must have been after the loan was approved, but before the Gateway Hotel meeting. See also ts 1310.

[94] Exhibit 9.587. See also exhibit 6.365 (an unstamped version which did not include Ms Dinh as trustee).

[98] Exhibit 8.452 page 2114 and ts 1063. See also exhibit 3.143 and ts 1003 ‑ 1004.

[99] Exhibits 2.61 and 2.62. Although Mr Dinh claimed he did not recognise the signatures on those documents (ts 869 ‑ 870, 873 ‑ 874), Ms Dinh admitted she had signed them both (ts 550 and 551). As I explain later, I find Mr Dinh did sign each document purporting to bear his signature - see under the heading 'Assessment of witnesses'. See also Second Defendant's Reply to Plaintiff's Chronology filed 18 July 2019 rows 28 ‑ 29. I will refer to this document as the 'Agreed Chronology' as the Bank did not have any substantive issues with it (ts 330 ‑ 331).

[100] Exhibits 2.75, 2.77 and 6.366 and Agreed Chronology rows 25 ‑ 27. Although Mr Dinh claimed he did not recognise the signatures on those documents (ts 875 ‑ 876), Ms Dinh admitted she had signed them all (ts 551, 552 and 553). As I explain later, I find Mr Dinh did sign each document purporting to bear his signature - see under the heading 'Assessment of witnesses'.

[101] See under the heading 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[102] See, for example, ts 974 ‑ 976, 1071 ‑ 1072.

[105] As will be seen, it had to be amended and was subsequently re‑signed.

[106] The Mortgages were exhibits 2.83, 2.84 and 2.85 (and see ts 1228).

[108] See exhibits 83 page 303, 84 page 307 and 85 page 311.

[109] This was not in dispute - see ts 1273. And see exhibits 2.138, 8.522, 16, and 1.36.

[120] See under the heading 'Assessment of witnesses'.

[122] See ts 1220 ‑ 1221, 1234 ‑ 1235 (noting that counsel did not subsequently identify any such documents).

[124] At ts 1278, I asked counsel for Ms Dinh if he intended to make this submission. He did not respond at that time, and did not subsequently make that submission.

[126] See under the heading 'Disabilities and resources'.

[127] See under the heading 'What did Ms Dinh know about financing?'

[133] See under the heading 'Assessment of witnesses'.

[135] The interest rate for the overdraft was actually 11.14%, with a rate of 13.99% applying to excesses.

[136] ts 1073 ‑ 1075. See also exhibit 2.91.

[137] Exhibit 2.92. See also ts 1272 and 1310.

[139] Exhibit 2.96 and ts 978 ‑ 979, 1075 ‑ 1076.

[140] Exhibit 2.96 and ts 978 ‑ 979, 1075 ‑ 1076.

[148] See under the heading 'Peter Dinh seeks a loan from one of his agents - 19 March 2009'.

[149] See under the heading 'Clearance of the extension - April 2009'.

[150] See under the heading 'Assessment of witnesses'.

[151] Exhibit 10.621. See also exhibits 9.616 and 9.620.

[152] See exhibits 9.616, 9.620, 10.621 and ts 770 ‑ 772.

[153] Exhibits 9.620 and 10.621, ts 654 ‑ 659.

[157] See under the heading 'Legal advice'.

[158] See under the heading 'Did Ms Dinh know the Bank was going to refinance the other loans?'

[166] Exhibit 3.158 and see ts 1079 ‑ 1081.

[169] See under the headings 'English abilities' and 'Assessment of witnesses'.

[170] Exhibit 3.159. See also ts 983 ‑ 985.

[174] See under the next heading 'Request for a cash flow budget - May 2009'.

[176] See under the heading 'English abilities'.

[177] It was granted on 22 April 2009 for 30 days - see exhibit 3.159 and Agreed Chronology row 61.

[182] See under the heading 'Assessment of witnesses'.

[184] ts 775 ‑ 776. See also ts 817 ‑ 818.

[189] Exhibit 3.166. See also ts 784 ‑ 785.

[191] See under the heading 'Assessment of witnesses'.

[192] Exhibit 2.118. See also ts 986, 988 and 1090 ‑ 1091.

[193] Exhibit 2.118 and ts 1088 ‑ 1091. See also exhibit 3.164 and ts 1086 ‑ 1087.

[195] See also the discussion of Mr Pollard's detailed analysis of the Dinhs financial position prior to the loan being approved - under the heading 'The approval of the loan'.

[204] See under the heading 'Did Ms Dinh know they had to sell the investment properties?'

[205] See under the heading 'Assessment of witnesses'.

[211] Exhibit 3.173. Andrew Dinh did not recall this conversation, but did not deny it - see ts 824.

[218] Exhibit 3.195. If it was matured into a Bills Matured Account, the entire loan would have been immediately repayable.

[220] See, for example, exhibit 3.203 and ts 827, exhibit 3.205 and ts 827, exhibit 3.214 and ts 829, exhibit 3.216 and ts 829 ‑ 830. See also exhibit 3.209 and ts 828.

[221] See, for example, exhibit 3.205 and ts 827, exhibit 3.209 and ts 828, and exhibit 3.220 and ts 831.

[222] Exhibit 17, ts 798 and 938 ‑ 939. See also ts 704.

[226] See under the heading 'Post loan, was Ms Dinh aware of the state of the overdraft account?'

[227] As set out under the heading 'Internet banking - June 2009', Andrew Dinh received a form to set up internet banking in June 2009, and, at some stage, he set it up.

[230] See Agreed Chronology rows 85 ‑ 87 and exhibits 3.218, 3.219 and 2.125.

[232] See exhibit 3.229 and ts 832 ‑ 833, exhibit 3.230 and ts 833 ‑ 834, exhibit 3.235 and ts 834.

[233] See the Agreed Chronology rows 92, 93, 95, 98, 102 and 106.

[235] Exhibit 4.243 page 715 and ts 932 ‑ 933.

[241] See under the sub‑heading 'Other evidence of Ms Dinh'.

[244] See exhibit 5.353 page 1248 and Agreed Chronology row 99. The rest of the proceeds were distributed, as Mr Pollard had advised the Dinhs they would be, by paying off the Aveley property loan and reducing the loan for the Perth property - see exhibits 5.348 page 997 and 5.350 page 1054.

[246] See under the heading 'The Bank advises securities on the other properties will be required - 2 January 2009'.

[247] See under the heading 'Did Ms Dinh know the Bank was going to refinance the other loans?'

[252] See also her evidence at ts 511, corrected at ts 672 ‑ 673.

[253] See exhibits 4.251, 4.252, 4.254, 4.257, 4.259.

[254] The CBFC is the arm of the Bank which provides finance for assets, such as tractors.

[256] Exhibits 4.282, 4.288 and 4.301. See also exhibit 4.294 and ts 846 ‑ 847.

[261] ts 887 ‑ 888. See also ts 1164 ‑ 1165.

[262] Exhibit 4.322 and ts 991 ‑ 992. See also ts 940.

[263] Exhibit 5.353. The deposit on 15 February 2011 was a flood relief payment from an external source.

[266] ts 533 ‑ 535. Although Ms Dinh referred to the block of land in 'Morley', from the context it was clear that she meant the Dianella property.

[277] ts 539, 541 ‑ 542, 699, 723 ‑ 724.

[278] See Agreed Chronology row 124 and ts 915 ‑ 916.

[282] See under the heading 'Ms Dinh was the family banker' and Agreed Chronology rows 103 and 105.

[284] See Agreed Chronology row 119 and exhibits 5.350 page 1088 and 5.353 page 1278.

[286] Exhibit 5.353 pages 1270 ‑ 1290.

[287] Exhibit 11. By cl A25 of the Bank's Common Provisions, a certificate is sufficient evidence of the amount owed unless it is contested - see exhibit 2.138 page 452.

[295] ts 994. See also ts 1082 ‑ 1083.

[300] See under the heading 'The Bank advises securities on the other properties will be required - 2 January 2009'.

[301] See under the heading 'Assessment of witnesses'.

[307] See, for example, under the headings 'More information sought, and provided, via Andrew Dinh' and 'The Bank advises securities on the other properties will be required - 2 January 2009'.

[310] See under the heading 'The settlement documents'.

[328] See under the heading 'The defendants' property portfolio' and ts 622 ‑ 623.

[332] ts 473. The interest rate for the overdraft was actually 11.14%, with a rate of 13.99% applying to excesses.

[338] See under the heading 'Disabilities and resources'.

[339] ts 476, 489 (set out under the heading 'A second meeting with the Bank, this time in Perth - late 2008'), ts 681 ‑ 682 (referred to under the heading 'The Ombudsman - September 2012'). See also Defence [21.4.1].

[341] See under the heading 'Knowledge of overdrafts'.

[342] ts 473. Although she thought it was higher than it actually was.

[345] ts 1230 ‑ 1231, 1289 ‑ 1290. See also Defence [16.1].

[346] See under the heading 'A second meeting with the Bank, this time in Perth - late 2008'.

[350] See under the heading 'The Bank advises securities on the other properties will be required - 2 January 2009'.

[351] See under the heading 'Proceeds from the Aveley property - May 2010'.

[352] See under the heading 'Proceeds from the Aveley property - May 2010'.

[353] See under the heading 'Signing documents to refinance loans to other lenders - 5 February 2009'.

[354] See in particular exhibit 10.634 and see also exhibit 10.621.

[355] See under the heading 'The settlement documents'.

[356] See also under the heading 'Andrew as an interpreter and conduit'.

[362] See under the heading 'Signing documents to refinance loans to other lenders - 5 February 2009'.

[363] These were the Consumer Credit Contract Schedules to refinance the home loans for the Ballajura, Dianella and Aveley properties - see under the heading 'Signing documents to refinance loans to other lenders - 5 February 2009'.

[365] See under the heading 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[367] See under the heading 'Ms Dinh finds out the Banks want to take all her properties'.

[370] See the heading 'Internet banking - June 2009'.

[373] See under the heading 'The Bank statements are faxed to the Dinhs - 25 November 2009'.

[376] ts 957 and exhibit 1.43 pages 163 ‑ 166.

[377] ts 957 and exhibit 1.43 page 163.

[382] Earnings before interest, taxes and amortisation.

[383] ts 958 and exhibit 1.43 page 165.

[385] See exhibit 1.42 page 158 and ts 1044.

[390] Exhibit 3.214 and ts 829. See also ts 530, 760, 828.

[391] ts 957. See also ts 1097 ‑ 1098.

[393] ts 1264 ‑ 1265. See also ts 1298 ‑ 1299.

[395] Exhibit 1.41 page 150 and ts 959.

[407] Exhibit 1.42 page 158 and see under the heading 'The grape income'.

[411] See under the heading 'Did Ms Dinh know they had to sell the investment properties?'

[414] ts 1258 ‑ 1259. And see ts 1287.

[418] See ts 614, 645 ‑ 646. See also ts 608.

[427] Exhibit 8.452 page 2114 and ts 1063.

[431] ts 1067 ‑ 1068. See also ts 1077.

[432] ts 981 ‑ 982. See also ts 1078 ‑ 1079.

[433] See under the heading 'Peter Dinh seeks a loan from one of his agents - 19 March 2009'.

[435] See under the heading 'The approval of the loan', in particular under the subheading 'The spreadsheet of Projected Performance'. And see also ts 1045 ‑ 1046.

[436] The content of this duty is discussed later, under the heading 'Breach of the Code'.

[437] Exhibit 5.353 pages 1215 ‑ 1244.

[438] Exhibit 5.353 pages 1230 ‑ 1237.

[439] See under the heading 'Proceeds from the Aveley property - May 2010'.

[440] Exhibit 5.353 pages 1248 ‑ 1265. This is disregarding the occasions on which significant debits were recorded but were reversed the next day.

[442] See under the heading 'The ANZ bank account is set up - late 2009'.

[444] See the Bank's submissions at ts 1130 and Ms Dinh's position that she met her repayment obligations - see ts 1245, 1257.

[454] I issued a certificate under s 11 of the Evidence Act 1906 (WA) so that her answers could not be used against her in criminal proceedings- see ts 685 ‑ 687, 851.

[463] I also issued a certificate to Ms Dinh under s 11 of the Evidence Act 1906 (WA) in relation to this evidence.

[464] Her counsel did not seek to contend otherwise - ts 1312.

[465] See under the heading 'Failure to disclose other properties'.

[466] See under the heading 'The $50,000'.

[467] ts 609 ‑ 612, 614 and 626. See also ts 645 ‑ 648.

[471] This was not disputed - see ts 1275.

[472] Ms Dinh says that she changed her name on 13 February 2003 - see exhibit 12.

[473] See under the heading 'Misled the NAB'.

[474] See, for example, under the heading 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[475] See under the heading 'The Family Trust - 27 November 2008'.

[476] For example, Mr Dinh claimed he did not recognise the signatures on exhibits 1.61 and 1.62 (ts 869 ‑ 870, 873 ‑ 874). Ms Dinh admitted she had signed them both (ts 550 and 551). He also claimed he did not recognise the signatures on exhibits 2.86 and 2.92 (ts 878, 882). Ms Dinh identified both of their signatures on those documents (ts 546 ‑ 547).

[479] See under the heading 'English abilities'.

[480] Counsel for Ms Dinh conceded that this inference was open - ts 1315.

[481] For example, his evidence that he would not have asked Mr Pollard for an extension of the overdraft because his 'parents never wanted to keep the overdraft facility' and wanted to get rid of it so 'there was no reason to extend it': see under the heading 'Proceeds from the Aveley property - May 2010'.

[482] For example, his evidence that none of the proceeds from the sale of the Aveley property went into the overdraft (ts 789) was contradicted by the account statement which showed $140,000 went into the overdraft, reducing the balance to $1,221.88 DR (exhibit 5.343 page 1248). See also Agreed Chronology row 99.

[488] See under the heading 'The approval of the loan'.

[490] ts 995. See also ts 1016 ‑ 1017.

[494] See ts 1237 and 1265. The submissions on Mr Pollard as a witness generally are at ts 1316 ‑ 1317.

[495] See, for example, ts 1015 ‑ 1021.

[496] See under the headings 'The Bank advises securities on the other properties will be required - 2 January 2009', 'Clearance of the extension - April 2009', 'The challenged call report' and 'Disabilities and resources'.

[497] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

[498] Fazio v Fazio [2012] WASCA 72 [136]. See also [134] ‑ [135], [138] ‑ [141].

[500] See under the heading 'Did Ms Dinh know they had to sell the investment properties?'

[502] See exhibit 2.139 cl 18.20 page 499.

[506] This follows from the requirement to prove causation. If the Bank failed to ensure she understood something, but she in fact understood it, the Bank's failure could not have caused a loss.

[507] See under the heading 'Ms Dinh's knowledge pre‑loan'.

[508] See under the heading 'Knowledge of overdrafts'.

[511] See under the heading 'Did Ms Dinh know they had to sell the investment properties?'

[514] See under the heading 'Did Ms Dinh know the Bank was going to refinance the other loans?'

[516] See under the heading 'Did Ms Dinh know that the new home loans would be one year interest only loans?'

[517] See, for example, ts 1287, 1300, 1309.

[519] See under the heading 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[520] See under the heading 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[521] See also ts 1277 ‑ 1278. Counsel did not return to this topic.

[522] As to which, see Sam Management Services (Aust) Pty Ltd v Bank of Western Australia [2009] NSWCA 320 [72] ‑ [74], [81] ‑ [82].

[523] Exhibit 6.376. The policy also required that there be another employee present, but this was not relied upon by Ms Dinh. This is understandable, as it could not have caused any loss.

[525] See under the heading 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[526] See also ts 1278. Counsel for Ms Dinh did not return to this topic.

[527] See under the headings 'Her knowledge of mortgages and credit generally' and 'Gateway Hotel - the first signing of transaction documents - 12 February 2009'.

[529] ts 1301.6, in light of ts 1300.5.

[531] See, for example, under the heading 'More information sought, and provided, via Andrew Dinh'.

[533] Doggett v Commonwealth Bank of Australia [2015] VSCA 351; (2015) 47 VR 302.

[535] Doggett [1], [8] ‑ [10], [218]. See also Westpac Banking Corporation v Haynes [2017] SASC 23 [66] and Bank of Queensland v Edwards [2017] QSC 191 [149] ‑ [150], [160] ‑ [162].

[537] See under the heading 'Prudence of the loan'.

[538] Doggett [8], [163] ‑ [165]. See also Westpac Banking Corporation [66].

[540] See under the heading 'Prudence of the loan'.

[541] The Commonwealth of Australia v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64. And see Doggett [25], [219].

[547] As was done, for example, in the context of a cl 25 case, in Westpac Banking Corporation [261].

[548] Defence [47.2.1]. The claims under the TPA were withdrawn - see ts 519.

[551] Although the Defence contains a number of typographical errors in identifying the properties the subject of this representation (eg. see the references in parenthesis in Defence [38]), the Defence as a whole suggests that Ms Dinh intended to allege a representation about the three properties mortgaged to other lenders - the Ballajura, Dianella and Aveley properties. This appears from the Defence [37.1] read with the defined terms in the Statement of Claim and Defence [40]. The unidentified 'Fifth Property' in [40.3] is, by reference to the account number, the Aveley property. In addition, Ms Dinh ran her case on the basis that the Second Representation was that the Bank would not refinance those three loans.

[552] See Defence [38] and [21.4.5]. See also Ms Dinh's closing address at ts 1268 ‑ 1269, 1275, 1279 ‑ 1283. See also the Bank's understanding, expressed on 3 September 2019, two days before Ms Dinh closed, at ts 1126.3.

[553] This was accepted by counsel for Ms Dinh at ts 1282.

[554] Prior to the trial commencing, I had ordered that the Bank open its case first, but that Ms Dinh was to call her evidence before the Bank called its evidence.

[558] See under the headings 'The Bank advises securities on the other properties will be required - 2 January 2009' and 'Signing documents to refinance loans to other lenders - 5 February 2009'.

[559] See under the heading 'Did Ms Dinh know that the Bank intended to refinance the other loans?'

[560] Plaintiff's Submissions on the Second Defendant's Case and List of Authorities dated 22 July 2019 (Plaintiff's Counterclaim Submissions) [40].

[561] See under the heading 'Clause 25.1 - Did not properly assess her capacity to repay'.

[562] See also Doggett [164] ‑ [165] (McLeish JA), [1], [8] ‑ [10] (Whelan JA), [218] (Garde AJA).

[564] See Caffey v Leatt‑Hayter [No 3] [2013] WASC 348 [325] ‑ [339] in relation to analogous provisions, s 82 of the Trade Practices Act 1974 (WA) and s 79 of the Fair Trading Act 1987 (WA).

[565] See under the heading 'A second meeting with the Bank, this time in Perth - late 2008'.

[567] See under the heading 'Assessment of witnesses'.

[568] Exhibit 5.353 (and see the summary in the Particulars of Statement of Claim [3(a)(i)]).

[569] See under the heading 'Prudence of the Loan'.

[570] Although s 12CC was pleaded, the written submissions made it clear that she intended to refer to s 12CB.

[571] Defence [56]. The claim under the TPA was withdrawn - see ts 519.

[573] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [38], [64]. See also Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 [14] ‑ [20], [122] ‑ [124], endorsed by the plurality in Thorne at [37].

[574] This element generally requires that the alleged perpetrator knew or ought to have known of the existence and effect of the special disadvantage.

[575] See the much quoted remarks of Mason J in The Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447, 462.

[576] See ASIC v Kobelt [48] ‑ [50] (Kiefel CJ and Bell J), [82] ‑ [93] (Gageler J), [118] ‑ [123] (Keane J), [144], [232] ‑ [234] (Nettle and Gordon JJ), [295] (Edelman J).

[577] See, for example, the Second Defendant's Trial Submissions [78] ‑ [91].

[579] Defence [2]. See also ts 1210.

[580] See s 12CC(1)(c) of the ASIC Act. The sixth point is also relevant to this subsection.

[581] Although she thought it was higher than it was. The interest rate for the overdraft was actually 11.14%, with a rate of 13.99% applying to excesses - see exhibit 2.92 page 349.

[582] See under the heading 'A second meeting with the Bank, this time in Perth - late 2008'.

[583] See s 12CC(1)(f) of the ASIC Act.

[584] See s 12CC(1)(g) of the ASIC Act.

[585] Amadio. See in particular at page 475.

[586] See s 12CC(1)(d) of the ASIC Act.

[588] Relevant by s 12CC(1)(j) of the ASIC Act.

[589] See s 12CC(1)(a) of the ASIC Act.

[590] See the Plaintiff's Counterclaim Submissions [41] ‑ [48], [51] ‑ [63].

[591] Second Defendant's Submissions on Plaintiff's Case and List of Authorities filed 23 July 2019.

[593] Belgravia Nominees Pty Ltd v Lowe Pty Ltd [2017] WASCA 127; (2017) 51 WAR 341.

[595] See also Bate v International Computers (Aust) Pty Ltd [1984] FCA 215; (1984) 2 FCR 526, 532 in relation to a similar provision in a Victorian statute.

[599] Vadasz v Pioneer Concrete (SA) Pty Ltd [1995] HCA 14; (1995) 184 CLR 102, 111.

[602] See the summary set out in Ms Dinh's table titled 'Total Security Property Equity'.

[603] See for example the Plaintiff's Counterclaim Submissions [87] ‑ [88].

[605] Singh v Kaur Bal (No 2) [2014] WASCA 88 [42] ‑ [43].