Factual findings of relevance for these issues
60 So far as the Defendant's case depends upon the version of facts which he gave, either in his affidavit, or in his oral evidence, I am unable to accept that version save so far as it is supported by independent evidence. I find him to be a witness who was untruthful, evasive and prepared to say almost anything that would suit his own case, no matter how preposterous it was, and no matter how inconsistent it was with the documentary evidence.
61 I am satisfied that he deliberately lied when completing the loan application insofar as he described himself as a solicitor and supplied particulars of his employment. His claims, in the witness box, in an attempt to justify these particulars, did him no credit whatsoever, being patently evasive and untruthful.
62 In this regard, his answers that "ones status as a solicitor is not negatived by whether one is formally admitted or not"; that he conducted legal work for Thompson & Associates in an annex to his wife's dressmaking and alterations shop at 14 Hartill-Law Avenue, Bardwell Park "within the scope of my being overseen by another practitioner by the name of Thompson"; and his concession that this solicitor who he named as David Thompson (without knowing his full name), did not work at the premises, that he was not aware of the location of his office and that he was supervised by him only by way of a contact number and a mobile number which he "would ring and run the details of any work past him", and that he had first met him in 2001, borders on nonsense. Why it could conceivably be that Mr Thompson, if he exists at all, would enter into such an arrangement and permit what amounted to an employee, who did not hold a practising certificate, working out of an annex to a dress shop, is inexplicable to say the least.
63 The Defendant's explanation, for the entry on the application form, which stated that he had worked for this firm for 12 years, to the effect that he had understood this question to relate to his domicile, fares no better. The absurdity of this answer is only reinforced by the fact that earlier in the application he had stated that he had been residing at Bardwell Park for 8 months, and at his previous address at Clemton Park for 5 years.
64 While he claimed to have been admitted as a solicitor in Thailand and Bangladesh, as the result of acting for some trading firm that did business in those countries, there was tendered a letter from the Law Society of Thailand which showed no record of his registration, as well as a copy of the Lawyers Act B.E. 2528 (1985), s 35 of which provides that it was a precondition to obtaining a licence to act as a lawyer in Thailand that the licensee be a Thai national (which the Defendant was not).
65 At one stage of his evidence he claimed to "hold a practising certificate to do legal work" in those countries, and to be admitted in those jurisdictions, yet he was later somewhat less certain about this, indicating that he was "not sure as to the accuracy" of his admissions.
66 The Defendant accepted that he did not hold a practising certificate in New South Wales. He claimed to have passed certain law exams although they were not identified. He also acknowledged having been convicted, in his absence on 12 December 2003, of nine breaches of the Legal Profession Act. While he purported ignorance of the precise nature of these breaches, he accepted that, in general terms they related to having held himself out as entitled to practice as a solicitor in New South Wales. He said that he had prepared an application to set aside the convictions although he had not yet filed it.
67 Apart from being satisfied that these matters have very great significance for the Defendant's credibility, I am also satisfied that he deliberately misrepresented his status and employment in the loan application so as to paint a better picture of himself, in order to obtain the advance.
68 Further concern as to his credibility arose in relation to the cross-examination concerning the document which the Defendant acknowledged having annexed to an affidavit, which he had prepared in support of his application to set aside the summary judgment which had been obtained. This was a copy of a document bearing a date 2 December 2003, purporting to be on the letterhead of Australian Secured Investments Ltd offering him a loan of $700,000, which bore a signature B. Lee. The Defendant accepted that this signature had a pictorial similarity to the signature Belinda Lee which had been placed on the loan approval which had been issued by the first mortgagee (Community First Credit Union) on 29 April 2003, and that the two documents were almost word for word the same. While the Defendant denied fabricating the December 2003 document, which he had relied upon in support of the application to set aside the judgment, the inference that he did so is overwhelming. Associated with this was the circumstance that although the Defendant acknowledged that he had prepared and filed this affidavit, and endorsed it with the name of Slattery Thompson & Associates, Solicitors of Earlwood, at no time had any appearance been filed on his behalf by that firm. The Defendant accepted that Mr Livers of the firm had not seen the affidavit until after it was filed, even though it bore his firm's name. His explanation that this firm had subsequently accepted instructions to act for him, is not capable of belief, in the absence of any appearance having been filed by it.
69 An important question in the proceedings is whether the Defendant received, signed and returned the security documents after learning of the caveat, as he asserted, or before learning of its presence on the title. In this regard, I am again satisfied that he has not told the truth.
70 Significantly, the business records which I have noted earlier show that his account cannot be correct, in that he had collected and returned the documents by 2.58 pm, and in that the caveat could not have been lodged before 3.19 pm, when it was stamped. It follows that it was not the presence of the caveat which forced him to sign the security documents, and to bind himself to taking the advance from the Plaintiff. It also follows that paragraph 4(g)(v) of the defence which the Defendant verified on oath was untrue, insofar as it was there asserted that he learned of the caveat on the morning of 21 July 2003. It cannot be dismissed as the Defendant sought to do, as a typographical error.
71 I similarly reject the Defendant's account that Mr Benn said to him on 18 July 2003, or at any time, that the Plaintiff would lend him the sum required at an interest rate of 3% per month for one to three months. Mr Benn was unshaken in his evidence, and he impressed as a truthful and credible witness. I accept his denial of this conversation, and also of the conversation which the Defendant said occurred at about 3.00 pm on 21 July.
72 The obvious untruth in relation to the 18 July conversation is established when one traces the sequence of events disclosed by the business records, and by the fact that the conditional offer of 18 July shows that the loan offered was for one month at an interest rate of 14.5% per month reducible to 12% per month for prompt payment. It is also established by the fact that, in the Defendant's letter to the Plaintiff of 18 July, he stated that the facility was only needed for 30 days. The Defendant's attempts to explain that this letter did not mean what it says provides a clear illustration of his evasiveness in the witness box. His implicit suggestion that the valuer recorded the wrong date of his inspection on the valuation report, and his insistence that it occurred later than 19 July fare no better in terms of credibility, there being no apparent reason why such an error might have occurred.
73 The untruth in relation to the 21 July conversation is established by the objective records as to the return of the loan documents and the stamping of the caveat. Generally it is obvious from the sequence of events that is shown on the face of these documents, that the Defendant had attempted to manipulate their timing. In these circumstances, and in the face of denials by Mr Benn, I cannot accept that the conversations to which the Defendant deposed, occurred in the terms which he asserted.
74 Additionally, absent corroboration from Mr Viscardi, I am not prepared to accept that he offered the Defendant an alternative line of bridging finance at 2% per month. Even if he had done so, as Mr Benn explained, there was nothing to prevent the Defendant from indicating that he did not wish to proceed with loan from the Plaintiff and from taking up an alternative borrowing.
75 Otherwise, in considering the Defendant's asserted vulnerability, it is important to note that, although his contract for purchase was executed on 20 December 2002 for completion on 31 March 2003, he did not obtain finance from the first mortgagee until 29 April 2003. The notice to complete was issued on 26 June 2003, requiring completion on 11 July 2003, yet the Defendant did not approach the Plaintiff for a bridging loan until 17 or 18 July 2003, even though he had been aware from 19 June 2003 that the judgment monies which he had expected would provide the balance of the purchase price, were not forthcoming.
76 Additionally, having completed his purchase on 22 July 2003, he then seems to have done nothing to force completion of the contract for onsale, which he had purportedly secured, even though he stood to make a capital gain in the order of $100,000 and even though its completion would have allowed him to discharge his borrowings.
77 These circumstances are to be understood in a context where, on his own account, or admissions in cross-examination, he had legal qualifications, he was familiar with legal documents, he was "something of a businessman", he was a "solicitor's agent and a property developer", he understood the transactions into which he was entering, he had no illusions as to the "terms, meaning or effect" of the mortgage, and had received independent legal advice. The borrowing, he also acknowledged was not required for the purchase of a residence for himself, but for business or investment purposes.
78 I am satisfied that the problem which he had was of his own making, in that he had delayed taking the steps needed to secure finance in a timely way and in that he allowed the Plaintiff, at most, four working days between the application and settlement to investigate and process the matter. I am equally satisfied, from the true sequence of events that he had received, signed and returned the loan documents before any caveat was entered upon the title. It was untrue for him to assert that it was the existence of the caveat that forced him to take the loan from the Plaintiff, or that he was in any respect, at any time, misled as to the terms of the finance offered by it, or unaware of their force and effect.
79 I am also not persuaded that he had been offered any alternative line of credit, at a lower rate of interest, or that anything that was said or done by the Plaintiff prevented him from either seeking another line of finance earlier, or taking it up on 21 or 22 July. If, contrary to my assessment, there was in fact an alternative lender available, then there was nothing to stop the Defendant from obtaining a loan from that source. As Mr Benn explained, had the Defendant wished to take up a loan elsewhere, the Plaintiff would have withdrawn the caveat and waived the fees.
80 The Defendant, I am satisfied, was not at any time misled in relation to the transaction, nor was any false or misleading representation made to him. Nothing was done by the Plaintiff to force him to enter into the mortgage. Such pressure that he felt himself under to secure the loan was entirely of his own making, and there is no basis whatsoever for a finding that the Plaintiff took advantage of him. He was not an ingénue and he was able to make his own business decisions in relation to this transaction as a whole. That it turned out to be disadvantageous was his fault, and not the fault of anyone else.
81 If anyone was deceived by misleading conduct or by misrepresentation it was the Plaintiff, and not the Defendant, in that the former was presented with an entirely false impression of the Defendant's occupation and employment. Moreover the Defendant by his conduct placed the Plaintiff in a position where it had precious little time to investigate the Defendant's bona fides, and was left in the position where it did not receive the independent assurance which it sought from the agent and solicitor, who were recorded on the contract for onsale, as to its genuineness, as to the availability to the purchaser of any loan which he needed to complete the purchase, or as to his payment of the deposit.
82 The Plaintiff was entitled to rely upon the Defendant's assertion that he was a solicitor, and also upon his declaration that he had obtained independent legal advice, and upon his statement that he had a contract for resale and expected to be able to repay the loan within 30 days. There was no reason for it to doubt these assertions, in the light of what was then known, and there is additionally no basis for any finding that it took any unfair advantage of the Defendant.