Does Mr Romeo have an Arguable Case?
52Mr Romeo alternatively contended an injustice would occur if he were not allowed to defend the matter. His defence was that he knew nothing about loans from the plaintiffs and never signed any of the relevant documents.
53It is beyond argument that over the years Mr and Mrs Romeo purchased a significant amount of real estate, some which they developed. They kept borrowing money in order to expand their investments and Mr Romeo accepted that he relied upon a mortgage broker called Mr Tony Murray. Mr Murray it seems provided advice to Mr Romeo and his wife about their finances.
54The Romeos' indebtedness grew from around $5.5 million to almost $15 million. In his affidavit of 6 September Mr Romeo identified the multiple entities he and his wife had first, second and/or third mortgages with over the years. They total 9 entities with category 10, somewhat enigmatically described as "others." He makes no mention of the plaintiffs.
55Much of the Romeos' borrowings were clearly from private sources, and interest rates no doubt proved in the end crippling.
56Mr Romeo asserted that he had never spoken to either plaintiff about borrowing money that he had never signed any documents relating to loans from them and he denied ever having received any monies from them. In particular he alleged that he had never signed a deed of loan.
57He was asked about the service of the statement of claim. He agreed he received some papers on 14 July. He did not read them but told his wife that they had been served upon him. He knew however they were court documents. He also knew he was being sued and he knew they were meant for him. He asserted however that he did not know that they related to a claim by the plaintiffs. He was asked about a document described as "independent contractor instruction form". This was a document completed in part by the person who served the statement of claim. He was asked whether his signature appeared in the middle of the page. He accepted that it was his signature but then he commenced what became a somewhat constant refrain in many answers he gave when being asked questions about his alleged signature. On the form, the letter immediately preceding the word "Romeo" is what appears to be a "J". Mr Romeo said in his evidence that it should be a "G" not "J". It is difficult to fathom precisely what point he was seeking to make because in his affidavit of 6 December he states very clearly that he was known as Giuseppe Joseph Romeo, Jo Romeo and Joseph Romeo. However he was quite certain that the word Romeo had been written by him.
58He was asked about a number of mortgage documents. He questioned the authenticity of his signature in almost every case. One document however in respect of which he did not take issue was a mortgage entered into on 10 June 2003. That was a mortgage to Mary and Margaret Weinert and Korburn Properties Pty Ltd, the amount borrowed was $290,000. He accepted his wife's signature appeared on that document. Again on 23 March 2005 he agreed that he and his wife signed a mortgage document this time the mortgage was to Tomori Pty Ltd and Conran Associates Pty Ltd, totalling $300,000.
59When shown a mortgage given to Permanent Trustee Australia Limited on 26 August 2006 in the sum of $3,250,000 he denied that his signature appeared on it. His reason for rejecting the signature was because the "R was totally different." He accepted that wherever indicated it was certainly his wife's signature. I observe that his and his wife's signature were witnessed it appears by a Mr Mathew Huntington who is a solicitor at Newport. The attestation clause makes it clear that Mr Huntington was asserting that Mr Romeo and his wife signed in his presence. There is a variation of mortgage attached to the documents executed it seems on 8 May 2008 again in favour of the Trustee for the sum of $3,577,500. Mr Romeo asserted again it was not his signature. In relation to the deed of variation Mr and Mrs Romeo's signatures were witnessed by their then solicitor Mr Carbone.
60Mr Carbone confirmed when he gave evidence before me that indeed that was his signature on the variation of the mortgage and that he had a standard practice which involved explaining salient points of a document to a client and then if the client was happy having the document signed in his presence and he would then witness the signature. When he was cross examined it was not put to Mr Carbone that either it was not his signature on the variation of mortgage or that he did not witness Mr and Mrs Romeo's signatures at the time they signed the document.
61I was informed for the first time at the resumed hearing on 20 June that Mr Romeo and his wife were seeking to set aside the judgment for possession which had been entered in favour of the Trustee and against the Romeos on 14 September 2010. Those proceedings as I have already observed have been heard by Justice McCallum and she is reserved. In those proceedings Mr Romeo swore an affidavit dated 11 November 2010, paragraph 37 of that affidavit is in the following terms:
"I have recently received the mortgage documents from my current solicitor relating to this transaction and which are Exhibited and marked "EX/GR/1". My signature appears on those documents however I did not know that:
(a)The mortgage was over my home being the Elanora Heights Property; and
(b)The mortgage was for $3,250,000; and
(c)Interest on the mortgage was 11.2% (or $364,000) reduceable to 8.20% or $266,500) if paid within seven days of the first of each month"
62In paragraph 45 of the same affidavit he refers to the same documents but on this occasion describes his signatures as:
"the signatures on the documents appear to be my signatures....."
63At the resumed hearing before me counsel for the plaintiffs sought leave to further cross-examine. I granted leave.
64Counsel for the plaintiffs initially asked Mr Romeo about another affidavit also filed in the proceedings before Justice McCallum of 20 October 2010. He was simply asked whether his signature appeared at the bottom of each of the pages of that affidavit. As to the front page of the affidavit he said he did not think it was his signature because the "R" was not his "R." He was quite emphatic as to the second page. It was not his signature. As to the third page, he was not too sure about it but in relation to the first two signatures in doubting they were his signatures, he said:
"The other two I am 100%"
65He said he did not remember signing any affidavits in relation to the proceedings concerning the Trustee. The difficulty for Mr Romeo was that the signature on the affidavit appeared to have been witnessed by Mr Phair, his current solicitor.
66Somewhat importantly in the affidavit of 20 October at paragraphs 2 and 3 he said that his wife showed him a document and said to him "we are being sued by the lenders over our house (referring to the Trustee) but don't worry I have given it to the solicitor Dominic Carbone to look after it and he will go to court." He also indicated that he had no reason to believe that Mr Carbone was not looking after the matter. Of course, this is a different matter to the one I am dealing with but it is indicative of the way Mrs Romeo with Mr Romeo's acquiescence dealt with their various legal matters. After Mr Romeo left the witness box I asked counsel for the defendant whether there was any question, about whether Mr Phair's signature appeared on each of the 3 pages of the affidavit of 20 October. I was told there was no issue about that and that it was Mr Phair's.
67After the short adjournment counsel for the defendant indicated to me that Mr Romeo was not a well man and that he had recently been told that his prostate cancer which he had believed to be in remission had come back. That had affected his ability to read documents and recognise his signature when documents were placed before him. He suffered from broken sleep and was extremely nervous. I was also informed that he had not been suffering from those symptoms earlier in the year (in February) when he first gave evidence before me. I was assured and accepted that counsel had only discovered this fact after Mr Romeo had left the witness box. I granted leave for Mr Romeo to be recalled.
68When he returned to the witness box he detailed his recent medical history and how from time to time he suffered from blurred vision. When that happened he said he got frustrated and could not concentrate. He was taken back to his affidavit of 20 October by his counsel. He indicated that he could now see his signature clearly and he recognised it as his on each of the pages. When further cross-examined however about his blurred vision I have to say that his evidence became even less plausible than it had been in the first place. Counsel for the plaintiffs then took him to the affidavit of 11 November and asked him a number of questions. He was referred to the signatures at the bottom of each of the pages and asked to agree that they were his signatures. His answers were:
A. "I can't - look I can't. I am not 100% sure about these signatures.
Q. What is it that concerns you about them, Mr Romeo?
A. I am not saying they are not mine: I am not saying they are mine. I just can't - they are all different, most of them."
69He was reminded of the evidence he had previously given in February this year before me about the mortgage and deed of variation of mortgage (Ex P4) and paragraphs 37 and 45 of his affidavit of 11 November read in proceedings before Justice McCallum were drawn to his attention. Again when asked about what appeared to be his signature on the variation of mortgage for example he said he was "pretty certain" it was not his. He simply could not explain why he had sworn an affidavit containing as it did paragraphs 37 and 45 on 11 November 2010.
70On the above events alone I find myself in a position where I am simply unable to accept anything that Mr Romeo said in February or said again on 20 June concerning his signatures not appearing as they purport to on the mortgage and the variation of the mortgage granted to the Trustee. If I did not consider any other answers he gave before me on 16 February and only looked at the matters I have chronicled above in relation to the those mortgages I am forced to reject his assertions that his signatures did not appear on them. The truth of the matter is that his own signature does seem to vary from time to time. On occasions, such as the 14 July he even signed his name "J Romeo."
71He has expressly invited another judge of this court to accept that his signatures appear on the Trustee's mortgages and yet before me he has expressly asserted that they do not bear them. I am sorry to have to say that I find his evidence on those points entirely untruthful and glaringly improbable. In his efforts to have the judgment set aside in these proceedings he has been prepared it seems to say anything that comes into his head which he considers helps his case however objectively absurd it is. I do not consider his evidence has relevantly been affected by the unfortunate return of his illness. I was told that he was not so affected in February this year nor was it suggested that he was so affected in late 2010 when he swore the affidavits which were read before Justice McCallum.
72But he was asked about other documents.
73He was asked about two caveats to which it was asserted he and his wife had consented. The caveator in both cases was M & V Endurance Pty Limited. Mr Romeo had already conceded in his affidavit of 6 December that M & V Endurance Pty Limited was an entity from which he and his wife had borrowed monies. Again Mr Romeo denied that his signatures appeared on either caveat. Again his reason for rejecting the signature was his, was that it was a different "R." I cannot accept his assertion that the documents do not contain his signatures.
74He was asked about a mortgage dated 22 March 2002 in favour of the plaintiffs. Again he denied it was his signature on either page of the mortgage because this time it was not his "G." In addition it was the wrong "R." He did recognise his wife's signature. I note that on this occasion both Mr and Mrs Romeo's signatures appear to have been witnessed by "A R Murray." I infer that this is the Mr Tony Murray earlier referred to as the mortgage broker and/or consultant. Failure on the part of the defendant to call Mrs Romeo is itself significant. Equally significant however, given his apparent role, is the failure to call Mr Murray. On the face of the document he witnessed the signatures of Mr and Mrs Romeo with whom he asserts in the document, he was personally acquainted and that they signed in his presence. I cannot accept Mr Romeo's assertion that his signature does not appear on either page of that mortgage.
75He was next shown a variation of mortgage dated 18 February 2003. Again the mortgagees are the plaintiffs. The amount is for $750,000. Mr Romeo was unable to recall an advance of a further $500,000. He accepted however that his and his wife's signatures appeared on both pages of the document. The signatures appeared to have been witnessed again by Mr Murray. It is obvious from this document alone that Mr Romeo appreciated at that time that he had borrowed at least these monies from the plaintiffs.
76He was shown another document dated 22 April 2003. Again, this is a mortgage in favour of the plaintiffs. On this occasion it is for $600,000. Again Mr Romeo did not recall borrowing those monies. He was emphatic that his signature did not appear on either page as the "G" and the "R" were different. He did recognise his wife's signature. Again the signatures appear to have been witnessed by Mr Murray. I cannot accept Mr Romeo's assertions that they are not his signatures.
77He was asked about a variation of mortgage dated 24 September 2004 again in favour of the plaintiffs. It was to extend the time for the repayment of the $600,000 previously borrowed. Again he denied that his signatures appeared on the document. It was not his "G" or his "M." He recognised the signature of his wife. Again it was it seems witnessed by Mr Murray. Again I cannot accept Mr Romeo's assertions that his signature does not appear on those documents.
78He was next asked about a mortgage of 1 September 2004 again in favour of the plaintiffs. It was for $500,000 to be repayable in September 2007. Again Mr Romeo did not remember borrowing this amount. Again he emphatically asserted that it was not his signature on any page of the document because it was not his "R." It was however his wife's signature. Again these documents were witnessed before Mr Murray and sadly again I am simply unable to accept Mr Romeo's denials that he did not know of the loan and/or his assertion that they were not his signatures.
79Next he was asked about a mortgage of 21 June 2006 and again it was in favour of the plaintiffs. It was for $400,000 again repayable in September 2007. Again Mr Romeo could not remember borrowing the monies. He insisted the signature was not his. It was the wrong "M" and the wrong "G" but he did again recognise his wife's signature. It appears it was witnessed by Mr Murray. I cannot accept Mr Romeo's evidence when he asserted that it was not his signature on either page of the document.
80He was next asked about a mortgage of 18 August 2008 in favour of the plaintiffs. It was for $300,000 this time repayable in August 2009. Again he could not recall borrowing monies from the plaintiffs. Although it was his wife's signature on the document he denied his signatures appear as it was a different "R" and "G" and a different "M." This was also it seems witnessed by Mr Murray and I again cannot accept Mr Romeo's assertions that they were not his signatures.
81He was next asked about the deed of loan. It appears that the loan document was prepared by Matthew Huntingdon and Co, Newport. Mr Romeo knew of Mr Huntingdon and that he was a solicitor. He denied that he knew that Mr Huntingdon acted for the plaintiffs. The document purports to bear a date 16 September 2009. He was asked whether his signature appeared on the first page and the last page of the document. He denied again that it was his signature because it was the wrong "R" and/or the wrong "G". He had no difficulty recognising his wife's signature. He had no idea how the words "G Romeo" came to be written twice on the document. Again I observe that Mr Murray appears to have signed the document and witnessed the signatures of Mr and Mrs Romeo whilst he was in their presence. I cannot accept Mr Romeo's assertions that these are not his signatures.
82The absence of Mr Murray is, as I have already observed of some considerable significance. There was no suggestion that he was unavailable for example. On 14 January 2008 he wrote to Mr and Mrs Romeo summarising their then current debt position and suggesting ideas as to how they might meet their financial requirements over the next two years. It is plain from that detailed letter which I accept Mr and Mrs Romeo received, that apart from the debt said to be owed to the Trustee, Mr Papalia - one of the plaintiffs - is identified in that document as having a fourth mortgage for the amount of $2.4 million. It is also plain from that letter that in January 2008 the Romeos even before the global financial crisis hit hard, were in need of substantial funds to meet monthly interest obligations.
83I have already observed that Mrs Romeo was in court for the whole of the morning of 16 February when Mr Romeo was first cross examined and when he denied many of the signatures that sat next to his wife's were not his. I am unaware whether she returned to the court on 20 June. What is clear is that if she could have given some credence to his various denials she would have been called to say so. To suggest that she copied his signatures and was not authorised to do so might be a step perhaps towards some sort of defence, weak though it might be. I can and do deal with this matter on the basis that no such scenario is provable. It is hard to imagine who else would have any motive in placing his signature on the documents apart from Mr Romeo himself.
84In summary, Mr Romeo wishes to have the judgment set aside on the basis that he has an arguable defence to the alleged indebtedness on the basis that some mysterious person apparently not his wife, not Mr Murray and no one he could otherwise identify has it seems forged his signature on numerous mortgage documents and for example the deed of loan. I have to say that on the state of the evidence before me I do not think that Mr Romeo has an arguable case that the various documents do not bear his signatures. The only injustice worked in my view if the judgment were set aside would be to the plaintiffs. For those reasons I reject and dismiss the motion to set aside the judgment as I am firmly of the view that no injustice would be caused to Mr Romeo in not doing so.
85I order the defendant pays the costs of the motion.