Jeans v Cleary [2006] NSWSC 647 | Case summary

Jeans v Cleary [2006] NSWSC 647 | Case summary | Zoe

Proceedings in the Federal Court of Australia 4 The Holloways Beach Project failed. In 2000, the Plaintiff and Deangrove sued the Bank in the Federal Court of Australia alleging misleading and deceptive conduct and claiming damages and an order setting aside the Plaintiff's guarantee of Deangrove's indebtedness under the commercial loan facility. The Bank cross-claimed against the Plaintiff under his guarantee. 5 For the purpose of the Federal Court proceedings, the Plaintiff admitted in pleadings that he had signed the guarantee. In three affidavits sworn on 13 March 2000, 25 September 2002 and 17 March 2003 and filed in those proceedings, the Plaintiff swore that he had signed the guarantee which he was seeking to have set aside. A copy of the guarantee was exhibited to the affidavit of 25 September 2002. 6 The trial began before Sackville J on 17 March 2003. On the third day of the trial, Mr Adam Bell SC, for the Bank, asked the Plaintiff under cross-examination to confirm that the signature on the guarantee was his. When his attention was drawn to the document, the Plaintiff said that it was not his usual signature and that it was different from the signature by which he had attested the fixing of Deangrove's common seal on another page of the same document. The Plaintiff applied to Sackville J for leave to withdraw admissions in the pleadings that he had executed the guarantee. The application was refused on 28 March 2003: Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268. The trial continued on the existing pleadings. 7 On 16 May 2003, Sackville J dismissed the claims of the present Plaintiff and Deangrove and entered judgment for the Bank on its Cross Claim against the present Plaintiff for $4,749,813.30: Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 470. An appeal to the Full Federal Court was dismissed on 19 December 2003: Jeans v Commonwealth Bank of Australia (2003) 204 ALR 327. The only ground of appeal was that Sackville J should have allowed the present Plaintiff to withdraw his admissions. On 10 December 2004, the High Court of Australia refused special leave to appeal against the decision of the Full Federal Court.

Proceedings in Supreme Court of New South Wales 8 On 4 March 2004, the Plaintiff sued the Defendant in the present proceedings, alleging that the signature on the guarantee was forged and claiming as damages the amount of the Federal Court judgment. 9 The Defendant applied by Notice of Motion for summary dismissal on the basis of issue estoppel, Anshun (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) estoppel or abuse of process. Mathews AJ rejected all three grounds and dismissed the motion for summary dismissal: Jeans v Cleary [2004] NSWSC 1245. Mathews AJ held that there was no privity of interest between the Bank and the Defendant and that the doctrine of issue estoppel did not apply (paragraph 27). With respect to Anshun estoppel, her Honour found that the Plaintiff's failure to dispute the signing of the guarantee until the third day of the hearing was unreasonable in the Anshun sense (paragraph 41). However, her Honour concluded at paragraph 45: "Had the matter ended there, I would have found that this was a case of Anshun estoppel. However in this case Mr Jeans, in his amended statement of claim, alleges that he was relying on Mr Cleary's fraudulent misrepresentation (that he had witnessed Mr Jeans signing the guarantee) when he accepted, in the earlier stages of the Federal Court proceedings, that the signature on the guarantee was his own. This is a matter which has not been previously ventilated. On its face, it appears to be a strange proposition, and it may well encounter serious factual and legal hurdles. But this is not the occasion for exploring those issues. I am concerned here with estoppel. And in my view there is no legal basis for shutting Mr Jeans out from asserting this matter. Nor is there any realistic possibility of severing this off from the other allegations in the statement of claim. Indeed this course has never been suggested." 10 Mathews AJ found that there was no Anshun estoppel to bar the present claim. 11 With respect to abuse of process, Mathews AJ concluded (paragraph 47): "Were it not for the matter I have just raised [concerning Anshun estoppel] , I would have acceded to this proposition. However Mr Jeans's assertion that Mr Cleary's fraudulent misrepresentation was responsible for Mr Jeans' inability to have the genuineness of the signature ventilated in the Federal Court, raises a fresh issue which he is entitled to have adjudicated and determined. Accordingly I find that there is no abuse of process." 12 Mathews AJ declined to dismiss the proceedings on the basis that no reasonable cause of action was disclosed. Her Honour noted that the Plaintiff's case was founded upon the existence of the Federal Court judgment, as it established the loss which was sought to be recouped in the present proceedings and that, accordingly, it was not necessary for the Plaintiff to seek to set aside that judgment in order to maintain the present proceedings (paragraph 49). 13 On 9 February 2006, the Court of Appeal, by majority (Handley JA and Young CJ in Eq, Bryson JA dissenting) dismissed an appeal from the judgment of Mathews AJ: Cleary v Jeans [2006] NSWCA 9. 14 On appeal, the Defendant did not challenge that part of the decision of Mathews AJ concerning privity of interest (paragraph 6). 15 The Defendant challenged her Honour's findings and conclusions concerning Anshun estoppel and abuse of process. In the course of rejecting the Defendant's submissions on these issues, Handley JA (Young CJ in Eq agreeing) said at paragraphs 29-31: "[29] If the respondent establishes that he was induced by the appellant's fraudulent representation in the attestation clause to conduct his case in the Federal Court until the third day of the trial on the basis that he had executed the guarantee and thus estop himself, as against the Bank, from alleging otherwise he was 'unable properly to contest' the decision to enforce the guarantee against him and lacked 'a full opportunity' to litigate the signature issue against the Bank.

Onus and Standard of Proof 27 The Plaintiff bears the onus of proof on the balance of probabilities in these civil proceedings: s.140(1) Evidence Act 1995. The nature of the cause of action (in deceit) and the gravity of the matters alleged (forgery) are to be taken into account in deciding whether the Court is satisfied that the Plaintiff has proved his case: s.140(2) Evidence Act 1995. 28 Accordingly, the standard of proof to be applied is the civil standard, proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of the Court, such satisfaction not being produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 701; Rejfek v McElroy (1965) 112 CLR 517 at 521. The Court should be comfortably satisfied on the balance of probabilities before such a finding is made: Bannister v Walton (1993) 30 NSWLR 699 at 711-712. 29 The rationale for this approach was explained in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 (footnotes excluded): "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involved criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct."

Events Leading Up to 3 June 1998 38 For the purpose of these proceedings, the Plaintiff has sworn two affidavits dated 22 September 2005 and 19 May 2006. Much of the Plaintiff's account of events leading up to 3 June 1998 is not controversial and is confirmed by contemporaneous documents (Exhibit L). The Plaintiff recounts that, in 1998, he was the sole director and shareholder of Deangrove, a company formed to undertake the Holloways Beach Project near Cairns in Queensland. John Richard Bruce was a practising architect at that time. The Plaintiff and Mr Bruce had agreed in the latter part of 1997 that Mr Bruce would carry out architectural work for the project. The Plaintiff states that he and Mr Bruce had a verbal agreement that if a nett profit was made by Deangrove upon the Holloways Beach Project, then he would receive 50% of that nett profit. Deangrove's solicitor in Queensland for the purposes of the acquisition of the Holloways Beach land was Wendy Cull. 39 The Plaintiff and Deangrove applied to the Bank for a substantial commercial facility for the purpose of the Holloways Beach Project. Negotiations took place from late 1997 into early 1998 for this purpose. 40 Initial consideration on behalf of the Bank to finance the Holloways Beach Project for Deangrove took place in discussions between the Plaintiff and Mr Hocking, a member of the Bank's "mobile sales force". 41 The Defendant was the relationship manager within the Bank for Mr Bruce's architectural practice and also for a company called Vanmeld Pty Limited which was a trustee of a discretionary trust associated with the Plaintiff's family. 42 On 4 February 1998, Mr Hocking initiated an unsecured advance of $100,000.00 to Deangrove under his personal authority by way of an overdraft. 43 On 2 March 1998, the Bank issued an amended offer of finance to Deangrove for facilities totalling $7,550,000.00 for a term of 13 months. The facility comprised $1.4 million to purchase the development site and $6.15 million for the development. Conditions of the offer included unlimited personal guarantees from the Plaintiff and Mr Bruce in favour of the Bank for the money to be advanced to Deangrove. On 8 April 1998, the Plaintiff and Mr Bruce signed a written acceptance of the terms offered by the Bank for finance for the Holloways Beach Project. 44 In about April 1998, management of Deangrove's account with the Bank was transferred to the Business Banking Centre and specifically to the Defendant. Between 9 and 24 April 1998, the Defendant was on annual leave. In his absence, his assistant, Mr Langley, took a number of steps including, on 22 April 1998, submitting an application to the Bank's Loan Processing Centre for urgent preparation of the documents necessary to proceed with the facility. On his return to work on 24 April 1998, the Defendant was made aware that security documents had been requested by Mr Langley and also of an increase in Deangrove's overdraft facility. 45 On 1 May 1998, the Bank's Loan Processing Centre communicated with the Defendant that a number of matters needed to be clarified prior to documents being prepared. The question was raised whether the proposed guarantors were "vulnerable" so that special procedures were required in accordance with the Bank's practice. 46 On 20 May 1998, the Plaintiff wrote a letter to the Defendant enclosing an application for a drawdown from the Bank in respect of the Holloways Beach Project. According to the Plaintiff, in early June 1998, he was anxious to proceed on behalf of Deangrove with the purchase of the land. No contract had been exchanged. Mr Millot had indicated to him that NZI Securities would only proceed with the mortgagee sale of the land if it could be finalised before the end of the financial year. 47 By early June 1998, the parties were nearing a settlement of the purchase of the acquisition of the land at Holloways Beach. Wendy Cull was acting as solicitor for Deangrove. Mr Robert Hynes was acting as solicitor for Japanese interests, including Mr Hayashi of HIS Travel. 48 On 2 June 1998, Mr Lehmann of the Bank's Loan Processing Centre forwarded documentation to the Defendant. The documents included individual forms of unlimited guarantee on the part of the Plaintiff and Mr Bruce and three copies of the tripartite agreement proposed between Deangrove, the Bank and BM Culley, the builder for the Holloways Beach Project. Mr Lehmann's memorandum noted that Mr Bruce was a "vulnerable guarantor" and referred to Bank procedures applicable to signature by such a guarantor. 49 The Plaintiff stated that in early June 1998, he had several telephone conversations with the Defendant concerning the proposed simultaneous exchange of contracts and settlement of the purchase by Deangrove of the land for the Holloways Beach Project.

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If I had examined that signature prior to 24 March 2003 I would have instructed my legal advisers to raise an issue concerning the due execution of the guarantee by me." 53 The Plaintiff characterised his claim against the Defendant in the concluding paragraph of his affidavit (paragraph 31): "I claim damages against the defendant in these proceedings for all sums represented by my liability to the Bank established in the Federal Court proceedings as well as all legal and other costs associated therewith. I also seek an award of exemplary damages." 54 The above account given by the Plaintiff in these proceedings is to be contrasted with earlier statements by him in pleadings and on oath in the Federal Court proceedings. The Bank's Cross Claim in the Federal Court alleged that the Plaintiff guaranteed to pay the Bank the secured monies and the Plaintiff's Defence to the Cross Claim filed on 12 July 2001, and repeated in his Amended Defence to the Cross Claim filed on 16 August 2001, admitted this allegation (Exhibit A, pages 28, 32). The Plaintiff filed a Statement of Claim in the Federal Court on 26 October 2000 which contended that he had executed the guarantee (Exhibit A, page 4D). An Amended Statement of Claim filed on 3 October 2002 in the Federal Court stated that the Plaintiff entered into the guarantee (Exhibit A, page 7). 55 The Plaintiff's affidavit sworn 13 March 2000 for the Federal Court proceedings included the following in paragraph 14 (Exhibit A, page 54A): "From the Diary I am able to say that I had a meeting with Steve Cleary at 2pm on 4 June 1998 for the purpose of signing documents. I am not able at this time to say what documents were signed however from other searches conducted by me I say that Deangrove Pty Limited and I signed the following documents: … (c) Guarantee by myself of the facility. I do not appear to have a copy of this document at the present time." 56 In his affidavit sworn 25 September 2002 for the Federal Court proceedings, the Plaintiff said at paragraph 41(ii) (Exhibit A, page 335): "41. On 12 June 1998 I signed:- … (ii) I signed a guarantee for the benefit of the CBA a true copy of which is exhibit 'AJ-A'; …" 57 The reference to "12 June 1998" as the date of execution arises because that was the date ultimately placed on the various documents which were signed on 3 June 1998. For present purposes, nothing turns on the reference to the date "12 June 1998" in this affidavit. 58 In his affidavit sworn 17 March 2003 for the Federal Court proceedings, the Plaintiff said at paragraph 34 (Exhibit A, page 345): "On 3 June 1998, I had telephone conversations both with Steven Cleary and Peter Hocking. At 2:00 pm on that day at Mr Cleary's request I went to the bank's offices in Sydney and was provided with security documents including the guarantee which is the subject of these proceedings. I signed the documents in the reception area where Steven Cleary had left them for me. Mr Cleary was not there and he did not witness my signature on the documents at that time. I had no conversation with Mr Cleary at the time I signed the security documents." 59 In this affidavit, which was sworn on the first day of the hearing before Sackville J, the Plaintiff asserted for the first time that the Defendant was not present on the afternoon of 3 June 1998 when he signed the various security documents. I will return to the significance of this change in the Plaintiff's case later in this judgment. For present purposes, it is sufficient to note that the Plaintiff at this time still admitted that he had signed the security documents. There was no assertion that he did not sign the guarantee. 60 The Plaintiff's denial of the signature on the guarantee, culminating in an allegation of forgery against the Defendant, unfolded in the following way. On 24 March 2003, the Plaintiff was under cross-examination by Mr Bell SC for the Bank. He was asked (Exhibit A, T231.17): "Now, could you turn please to page 403 of this volume. You recognise that don't you, being a document which runs from page 403 to 415. There is a copy of the guarantee which you signed in respect of the debts of Deangrove? --- That's correct. Although it's dated 12 June 1998, you in fact signed in [sic] on 3 June 1998, didn't you? --- I believe that to be the case. Your signature appears on page 414 or a copy of it at least? --- A signature appears there, yes. It's not the same as my normal signature, which is on 415. There is no doubt that it's your signature though, is it? --- I can't confirm that right now, because it's different from my normal signature. You told me a minute ago that this was a copy of a guarantee which you signed in respect of debts of Deangrove, do you remember saying that? --- No, I didn't say that. I was looking at it and then I recognised it as a copy of the guarantee. Then I looked at the last page 415, which my signature appears on and then you've just shown me this signature. I don't know - it's not my normal signature. You are not seriously suggesting to his Honour that you didn't sign this guarantee are you? --- I signed page 415, that's my normal signature. You are asking me if that's my signature on page 414, and I'm saying that that is not my normal signature. At page 415 your signature appears under the common seal of Deangrove in order to execute the document on behalf of Deangrove? --- That's correct. Are you suggesting to his Honour that you didn't sign this guarantee in your own personal capacity? --- I am suggesting that that signature there is not my normal signature. But no, that's not the question I asked you? --- I understand that - well it doesn't look like my normal signature, and I'm suggesting that that isn't my normal signature. I am not suggesting, I am telling you that is not my normal signature. Have you ever suggested before this moment in these proceedings that you didn't sign this guarantee on your own behalf? --- No. And you are not suggesting it now, are you? --- I am telling you that that is not my signature. I have never looked at this document in great detail until today. Are you suggesting to his Honour that there is now some doubt in your mind as to whether you signed this guarantee in your own personal capacity? --- I am not suggesting - I am saying, that that signature is not my normal signature, and I am suggesting that I wouldn't have put that signature there. If you look on 415, that is my standard signature and I think if you check the other documents you will find all the way through that my signature is like that." 61 In these answers, the Plaintiff moved from an admission that he had signed the guarantee to an assertion that the disputed signature did not appear to be his "normal signature" and that it could be contrasted with his "standard signature" which appeared elsewhere in the document. 62 Soon after, Mr Bell SC asked (Exhibit A, T235.5): "And you've never suggested before today that you didn't in fact sign the guarantee, have you? --- I'm telling you that that's not my signature and it isn't. And you've never suggested that before today, have you? --- No, I haven't, no." 63 The Plaintiff's position had now hardened into a denial that the disputed signature was his. 64 Soon after, the Plaintiff was asked (Exhibit A, T243.22): "You say it's not your normal signature. Let me just make sure I understand this evidence. Are you saying that it is not your signature? --- I'm saying that is definitely not my signature. Definitely not your signature? --- No. HIS HONOUR: By that I take it, Mr Jeans, you mean you never signed that document, being the guarantee? --- I did sign one portion of it, your Honour. I'm not talking about the portion on page 13 of the document - you will see the numbers at the top of the page - I'm talking about page 12, and I just want to make it clear in my mind as to what you're saying. Are you saying that not only does that not look like your normal signature but you did not in fact sign page 12 of the document? --- Well, I wouldn't have signed it like that, your Honour.

I just wanted to know what you're saying, so the answer to my question is I did not sign at page 12? --- No." 65 The Plaintiff was now definite that the disputed signature was not his. 66 The Plaintiff was shown the original guarantee document (Exhibit A, T267.20): "MR BELL: Mr Jeans, I want to show you this document. Do you recognise it as the original of the guarantee, a copy of which appears at pages 403 to 415 of exhibit A1? --- Yes. I would just like you to study the signatures on the last two pages of that documents, [sic] and then I'll ask you some questions about it. Can you tell me when you've done that please? --- Yes, I have done that. Is this a fair statement of your position, Mr Jeans, sitting here now in the witness box, you can't be sure that it's your signature that appears on the page where Mr Cleary's signature appears? --- That's correct. But sitting here in the witness box, you don't deny that it's your signature, do you? --- It's not my signature. Is this the position, you can't be sure that it's your signature. Is that a fair statement of the position? --- Well it isn't my signature. My signature appears on page 13. Do you deny it's your signature? --- That is not my signature. That is not how I sign things. Could that be marked for identification? HIS HONOUR: Just so I can be clear about it, Mr Jeans. Do you deny that you signed that page, that is to say, page 12 of the document? --- Your Honour' that's not my signature. I understand that, but I just want to be clear that that is what you are saying? --- Yes. That's correct." 67 By this stage, the Plaintiff denied that he had written the disputed signature on page 12 of the guarantee. 68 The Plaintiff contends that there is ring of truth in his disavowal of the disputed signature moving from a position of uncertainty to one of certainty at a time when he had an opportunity to consider the original guarantee document. It is said that this development in the course of cross-examination before Sackville J was entirely inconsistent with the Plaintiff having intentionally signed his name differently on 3 June 1998 so as later to permit him to disavow it if he saw it in his interests to do so. The Defendant, on the other hand, submits that the sudden turn of events in the course of cross-examination is, to say the least, unconvincing. The Plaintiff had available to him for some considerable time copies of the guarantee document, one of which he exhibited to his affidavit of September 2002. The Defendant submits that the Plaintiff's sudden recognition, or lack of recognition, of the disputed signature was implausible. It came at a time when the Plaintiff was under substantial challenge in cross-examination and where, the Defendant submits, the Plaintiff may have perceived it in his interests to invoke a new potential line of defence. 69 I will return to these arguments later in this judgment. It is appropriate, at this point, to turn to a document upon which Mr John Ireland QC, for the Plaintiff, placed considerable reliance in evidence and in his submissions, the 1998 diary of the Plaintiff.

I did not add those entries in order to bolster my position in any litigation that was later pending or imminent." 76 It will be recalled that the first time that the Plaintiff alleged that the Defendant was not present at a meeting with him on the afternoon of 3 June 1998 was in his affidavit sworn 17 March 2003. Until that time, the Plaintiff had admitted that a meeting took place with the Defendant and that it was during that meeting that he signed the security documents, including his guarantee. 77 The Plaintiff's diary contains no internal means to verify when entries were placed in it by him. There is no evidence from any other person who alleges that they saw Items 33-35 in the Plaintiff's diary at a time close to 3 June 1998. For example, there is no evidence that the Plaintiff's diary containing Items 33-35 was copied and provided to any person at a time approximate to 3 June 1998. The evidence reveals that, at the request of this then solicitor, Mr Butler, the Plaintiff provided in February 2000 to Mr Butler typed notes which were said to emanate from his diary. With respect to events on 3 June 1998, the typed notes stated (Exhibit C, page 1): "3/6/98 Conversation Between Tony Jeans (TJ) & Steve Cleary (SC) SC - called re docs have not yet got them for Holloways 3/6/98 Conversation Between Tony Jeans (TJ) & Steve Cleary (SC) TJ - called SC 93784332 - docs ready in 15 minutes come in 2pm 3/6/98 Meeting Between Tony Jeans (TJ) & Steve Cleary (SC) 2pm - CBA Cnr Market & George St Sign up get Wendy Cull to call." 78 Mr Butler said that he did not look at the Plaintiff's original diary at any stage (T92.51). The typed document (Exhibit C) was prepared as a form of chronology from the notes, diaries and records possessed by the Plaintiff which was intended to assist his then counsel to prepare his affidavit (T92.41). Mr Butler agreed in his evidence here (T94.58) that he gave the following evidence on 31 March 2003 before Sackville J and that the evidence was true (Exhibit A, T492.13): "Presumably prior to receiving it you had asked Mr Jeans to provide a transcript of his diary in order to help prepare his affidavit of 13 March 2000? --- That's right. I assume you asked him to transcribe all the extracts from his diary which he considered relevant to these proceedings? --- Yes, to assist in the preparation of an affidavit by him." 79 It is appropriate at this point to turn to the Plaintiff's evidence before Sackville J concerning diary entries 33-35 for 3 June 1998. 80 Mr Bell SC cross-examined the Plaintiff concerning the contemporaneity or otherwise of the notes which had been incorporated in the typed document provided to Mr Butler in February 2000 (Exhibit C). The Plaintiff was asked (Exhibit A, T204.1): "Now in paragraph 31 of your affidavit sworn yesterday, you say that the notes which are transcribed in annexure A were made at the time of the meetings and conversations to which they refer? --- Mm. That's correct? --- Well in the majority. I can't say to you that what would happen is that someone might ring me. I might write in my diary that Mr Bell had phoned me and then I might have been driving so then I would - if it was something that I needed to record I might later write in there you know what I thought my version of what occurred. But in so far as there is an entry that's under a particular day we can take it that that entry was made on that day, is that right? --- Not necessarily. It might have been made later. The day the call took place would be correct but I may not have gone through it an [sic] filled it in till later. Well you say in paragraph 31 that the notes were made at the time of the meetings and conversations to which they referred. Do you see that? --- Well, I recorded the date that they were made at the time the call was come [sic] . I might have filled in some notes later, it was a running file effectively. You say that the notes were made at the time of the meeting? --- I understand that. You want to correct that? --- That's a mistake, yes. What do you want to correct and make it so that it is true and correct? --- Well, they might have been made - I can't put a time on it because I work on those, it's like a moving file. I carry that notebook with me and I make notes on it and that's how I operate. So some of the notes might have been made later than the date on which they appear? --- Absolutely. How much later? --- I have no idea. Months later? --- Could be. Could be months later? --- Mm. So in so far as there are entries in these day books, we can take it that some of these entries could well have been made months later than the date on which they purport to bear? --- Well, a lot depends. You see --- Is that right? --- Well, that could be correct, absolutely, yes. They could have perhaps been made years later, could they? --- I don't know about years later, but months later. A year later? --- I just don't know, I couldn't tell you. I've no idea. It certainly wouldn't be correct to say they were made at the time of the meetings and conversations to which they refer then, would it? --- The actual time that is nominated for the date that I was in there. I made notes to take further notes, because what would happen is and what I found happened, is that people would ring you up and they would say something to you, and you would say - fine, just let me write that down - and then later they would call back or something would turn up and what they told you earlier was substantially different, and you'd say - that's not what he said, I'd better go and check that and you'd write a note to the effect of what you understood the position to be at that time. So I would go and do that. So some of the notes that appear in your day books, and are transcribed annexure A, virtually could have been made months after the date that they purport to bear? --- If there was need for me to refer to them, certainly. It's like a file. Can you identify which of the notes transcribed in annexure A were made months after the event? --- Well I have no idea. I've got diaries going back over 20 years. It follows from that, does it, that his Honour couldn't rely upon these day books as being contemporaneous notes made on the date that they purport to bear? --- I couldn't sit here and tell you that every single note was fully completed on that date that it was written, because I might have written it the next day, I might have written it - it's a file, it's like having a file. So you agree with my question, do you? --- I don't agree --- HIS HONOUR: You had better repeat the question. MR BELL: His Honour therefore, can't rely upon the notes which are transcribed in annexure A as being contemporaneous notes made at the time of the meetings and conversations to which they refer? --- That's correct, absolutely." 81 The Plaintiff was still under cross-examination by Mr Bell SC on 24 March 2003 when his attention was drawn to the original diary (Exhibit B). The Plaintiff was asked (Exhibit A, T252.15): "Now I want to show you your original day book so described for the period starting 3 June 1998. HIS HONOUR: Mr Jeans, you agree that is your day book covering that period, is that correct? --- That's correct, your Honour. MR BELL: The diary starts at 3 June 1998, correct? --- That's correct. Item 15 under the date 3 June 1998 states Steve Cleary. There is then a phone number? --- That's correct. Do you agree with me so far? --- That's correct. Then it says, doesn't it, 'Docs ready in about 15 minutes, come in 2.00 pm', correct? --- That's correct. Item 16 says, 'Steve Cleary meeting 2.00 pm', correct? --- That's correct. It says, 'That you're to sign or signing up, get Wendy Cull to call'? --- Correct. Then item 33 on 3 June 1998 says, 'Signed up, docs in reception, Steve Cleary them [sic] there for his girl on front desk. Will get him to witness later'. Is that correct? --- That's correct. There's two further entries marked 34 and 35, correct? --- Yes. Now you see, don't you, that the entries marked 33, 34 and 35 are made with a different pen to the preceding entries, aren't they? --- That's correct. Entries 33 to 35 were made by you a long time after 3 June 1998, weren't they? --- They wouldn't - I don't think they were made on the day. I couldn't tell you when but they - I don't think they were made on the day. You can't say how much later they were made? --- Not off the top of my head, no. I don't know. You certainly don't suggest they were made on 3 June 1998? --- No, not with a different pen. But going back to entries 15 and 16 you say they were made on 3 June 1998, do you? --- Yes absolutely. It was all the same pen. That what's happened, isn't it, that you met Mr Cleary at 2.00 pm on 3 June to sign documents, including your guarantee, correct? --- Well, I can't say I did meet Mr Cleary. It's not my recollection of it. I went there to sign these documents but I'm not sure which documents or the content. I knew there was documents [sic] in that bundle but which exact documents I couldn't tell you. Items 15 and 16 indicate to you, don't they, that you signed documents at 2.00 pm on 3 June 1998? --- Correct." 82 Soon after, Mr Bell SC took the Plaintiff to Items 33 to 35 in the diary. He was asked (Exhibit A, T265.1): "MR BELL: You understand that these entries are relevant to the issues that need to be decided in this case? --- That's correct. You would regard them as important, would you not? --- Correct. How is then [sic] that you failed to refer to these entries in your affidavit of 13 March 2000? --- I have no - I can't - no explanation. The reason, I suggest, is because you added these entries under 3 June some date after 10 August 2001? --- Well, I can't comment, I don't know. It's entirely possible isn't it? --- Possible. Indeed it's probably [sic] isn't it? --- I can't say it's probable. The fact is that you made these entries with the intention of misleading the court into believing that these were contemporaneous notes which you had made of events which took place on 3 June 1998? --- That's incorrect they weren't in evidence. I beg your pardon? --- These documents, were nothing to do with the court. What documents had nothing to do with the court? --- This diary. You had this diary with you, didn't you, when you prepared your affidavit of 13 March 2000? --- Correct. There is no reference in your affidavit of 13 March 2000 to these entries, is there? --- No. These events referred to in entries 33, 34 and 35 you recognise as being important to the issues in this case, don't you? --- That's correct. You make no reference to them in your affidavit of 13 March 2000? --- That's correct. The reason for that is you have added these entries at some date, I suggest, after 10 August 2001? --- Well I've added them when I felt it was appropriate to jog my memory. These documents were not in evidence. They were nothing to do - it was personal, my personal records. You've added entries 33, 34 and 35 in MFI1 for 3 June 1998 with the specific intention of misleading the court into believing that these were contemporaneous entries which related to events occurring on 3 June 1998? --- That's totally incorrect. That is why you said in your affidavit sworn last Monday at paragraph 31: 'These notes were made at the time of the meetings and conversations to which they refer'? --- Well that's correct. That evidence is false, isn't it? --- Well it would be in respect to those three entries but I did tell you the other day that I did add to some notes as and when things came to mind." 83 Shortly after, Sackville J asked the Plaintiff a number of questions (Exhibit A, T283.7): "I understand from the answer you've just given and an answer you gave this morning that you say that you did not intend to mislead anybody because at this stage MFI1, that is, the spiral notebook, was not in evidence and this entry was not directed to any court proceeding. Is that what you've said this morning and just now? Have I understood that correctly? --- That's correct. It really is a reminder to me when I'm reading it to sort of jog my memory about things. This is something, I think, that Mr Bell has asked you about but I do want to ask you about it again. The difficulty from your point of view you see may not be that you made the entries in the spiral notebook for the reasons that you've just given, namely, that it was not in evidence and it was really a notation to yourself. The difficulty may be if paragraph 31 of your affidavit of 17 March 2003 when you say that these notes were made at the time of the meetings and conversations to which they refer and accurately reflect the events recorded. The difficulty to which I refer is that by this time, I take it, and correct me if I'm wrong, you were well aware that many of the entries in MFI1 had been made well after the events to which they refer, is that a fair statement? --- Not many, sir; maybe two or three. Just two or three? --- There may be four but what I'm saying is that, and I should have correctly when Mr Ireland was asking me about this have gone back to it but to be absolutely honest I didn't for no other reason than I forgot all about it. There was a real scramble to get this all on and I was certainly coming from behind the eight ball and I didn't think about it and in fact I was asked to adduce these after a morning session with Mr Ireland and I actually went at lunchtime back and I got a temp to help me go to Millers Storage to find the documents and bring them to his chambers and, you know, what you say is absolutely correct; yes I did make those notations. I should have told Mr Ireland that I'd made them and I didn't." 84 Sackville J clarified with the Plaintiff that Items 33 to 35 of 3 June 1998 were not contemporaneous (Exhibit A, T284.7): "HIS HONOUR: All right. As I understand what you are saying is that there are perhaps four or so entries during the period covered by paragraph 31 which I think is the period from January 1998 to 12 June 1998? --- To be absolutely honest, your Honour, I just don't know. It wasn't a habit of mine to make alterations to it unless there was a reason or I need to remind myself. I do want to be clear about it? --- But I don't know exactly how many - I could go through each page and see if there is different ink or something like that, but I --- That may be a matter for Mr Bell to pursue, but I just want to understand what you are saying. What you are saying is that in the period covered by MFI1 you think there is only about four or so cases where you made additional notations after the event? --- I actually thought there was only two, but you've just pointed this one out, maybe there is three. You've accepted I think four. Namely 33, 34 and 35 of 3 June and 31 of 4 June? --- Yes, okay." 85 It is apparent that the principal foundation for the finding made by Sackville J adverse to the Plaintiff with respect to the lack of contemporaneity of Items 33 to 35 for 3 June 1998 was the evidence of the Plaintiff himself. 86 In evidence before me, the Plaintiff maintained that Item 33 was made shortly after the relevant events on 3 June 1998, "maybe a few hours later" (T35.28; 38.47). The Plaintiff sought to distance himself from the answers given to Sackville J in March 2003 by drawing a contrast between entries that referred to meetings and conversations and other types of entries. He claimed that Item 33 was in the latter category. He was asked by Mr Bell SC (T39.4): "Q. Specifically, it would be false to say that entry 33 from your diary was made at the time of the event to which it refers, wouldn't it? A. It was made shortly thereafter.

Q. And you are giving evidence which you know to be false? A. No." 89 In later cross-examination, the Plaintiff sought once again to distance his answers given before Sackville J that a number of entries in the diary were written a considerable time after the relevant events from the specific admission that these entries included entries 33 to 35 of 3 June 1998 (T51-58). 90 Mr Ireland QC submits that Items 33 to 35 of 3 June 1998 provide a form of corroboration of the Plaintiff's account that there was no face-to-face meeting with the Defendant on the afternoon of 3 June 1998. Insofar as the Defendant alleges that the Plaintiff has fabricated Items 33 to 35 by inserting them in his diary long after 3 June 1998, Mr Ireland QC himself invokes the principles in Briginshaw to resist such a finding. 91 It is appropriate at this point to refer to the alleged status of the Plaintiff's diary as a form of corroboration of his account. The evidence pointing to the alleged contemporaneous nature of Items 33 to 35 flows from the Plaintiff himself. There is no other evidence supporting this view. Mr Ireland QC submits that the diary (Exhibit B) speaks for itself as a clear set of contemporaneous records made by the Plaintiff - the entries all appear on the pages relating to 3 June 1998. 92 The Plaintiff's own evidence before Sackville J does not support this submission. His evidence before me on this issue was most unconvincing. Items 33 to 35 within Exhibit B are a form of self-serving note written by the Plaintiff at a time which cannot be determined by reference to the diary itself. 93 Broad practical assistance may be derived from common law principles concerning the nature of corroborative evidence. Corroboration is not a technical term. It simply means confirmation: Director of Public Prosecutions v Hester (1973) AC 296 at 325. The essence of corroborative evidence is that it confirms, supports or strengthens other evidence in the sense that it renders that other evidence more probable: Doney v The Queen (1990) 171 CLR 207 at 211. Corroborative evidence ordinarily meant supportive and confirmatory evidence in the sense of independent evidence arising from a source other than the alleged victim: R v E (1996) 39 NSWLR 450 at 457-459. At common law, it was necessary that corroboration be independent from the person to be corroborated. In R v Baskerville (1916) 2 KB 658, Viscount Reading CJ at 665 observed that corroborative evidence must be independent testimony. It was necessary that the evidence be extraneous to the witness who was to be corroborated: R v Whitehead (1929) 1 KB 99 at 102. In referring to these common law principles, I am not seeking to apply these legal principles to this case. Rather, the law's approach to corroboration reflects the common sense position that ordinarily a person cannot corroborate himself. 94 Items 33 to 35 of the Plaintiff's diary are not pieces of evidence which are independent from the Plaintiff. He created them. The critical question is when the Plaintiff created these entries. There is no evidence independent from the Plaintiff which supports his claim that the entries were written on or about 3 June 1998. The bare existence of Items 33 to 35 as the final entries in the diary for 3 June 1998 provides little assistance to the Plaintiff's case. 95 Mr Ireland QC submits that a "subtle synergy" emerges from Items 33 to 35. He submits that other events which occurred at about that time involving actions of Ms Cull, throw light upon these items and support a conclusion that Items 33 to 35 were written later on the day of 3 June 1998 or very soon after. Mr Bell SC submits that the reference to Ms Cull, and the documentary evidence pointing to steps taken by her on 4 June 1998, may best be explained by the Plaintiff and the Defendant having a discussion at the meeting on the afternoon of 3 June 1998 with the Plaintiff contacting his solicitor, Ms Cull, thereafter to request that certain action be taken. I accept the Defendant's submission in this respect. I do not accept the Plaintiff's submission that there are subtle features contained in Items 33 to 35 which support their contemporaneity. 96 What then ought be concluded about Items 33 to 35 for 3 June 1998 in Exhibit B? The Plaintiff's evidence before Sackville J supported a conclusion that Item 33 was written after March 2000. The Plaintiff agreed before Sackville J that it was possible that this entry had been added after August 2001 (Exhibit A, T265.6). The Plaintiff's claim in this Court (that Item 33 was written later on 3 June 1998) contradicts his own account given three years earlier in the Federal Court. 97 Further, the evidence of Mr Butler, and the content of the typed notes (Exhibit C), supports the Defendant's argument that Item 33 was written long after 3 June 1998. If Item 33 had been contained in the Plaintiff's diary as at February 2000, it would have featured in the Plaintiff's typed notes based upon his diary. The typed notes stated that the Plaintiff had indeed met the Defendant on the afternoon of 3 June 1998. The presence of this note in Exhibit C undermines the Plaintiff's evidence, and supports a conclusion that Item 33 was written long after 3 June 1998. 98 The Plaintiff experienced difficulty on this issue in cross-examination before me(T73.58): "Q. It is inconceivable, I suggest, that in reviewing your diary for the purpose of preparing exhibit RB1 that you would have included entry 16 but not entry 33? A. Is that a question?

Q. Do you have any explanation why entries on that page were not included in the document that was typed? A. Well it wasn't relevant to what I'd been asked to do, I was just asked to show a chronological order in which events had happened." 100 I do not accept the Plaintiff's evidence on this point. If Item 33 was present at the time when the typed notes (Exhibit C) were prepared in February 2000, then it is inconceivable that the Plaintiff would have inserted in the typed notes the fact that a meeting took place at 2.00 pm on 3 June 1998 with the Defendant if, in fact, no such meeting had occurred. The absence of such a note in the typed document prepared by the Plaintiff in February 2000 strongly supports a conclusion that Item 33 had not been written at that time. This inference supports the Plaintiff's own evidence before Sackville J that these items were created a considerable time after 3 June 1998. 101 Mr Bell SC submitted that the Plaintiff was motivated to fabricate Item 33 so that it could provide him with a measure of support in the Federal Court proceedings. The particular forensic purpose which served the Plaintiff at the beginning of the hearing on 17 March 2003 was that it bolstered his then claim, made for the first time, that the Defendant was not present when the Plaintiff signed documents on the afternoon of 3 June 1998. The fact that the Plaintiff was advancing such a case for the first time at that stage is itself further support for a conclusion that the Plaintiff created Item 33 for that purpose and at a time long after 3 June 1998. 102 The Plaintiff had difficulty reconciling Item 16 for 3 June 1998 with the account he now gives in his affidavit of 22 September 2005. Clearly, Item 16 envisaged a meeting with the Defendant at 2.00 pm on 3 June 1998. The Plaintiff said in evidence in these proceedings that he had agreed to meet the Defendant at about 2.00 pm that day (T10.7, 11.6). The Plaintiff agreed that paragraph 17 of his affidavit of 22 September 2005 was "incorrect" because it did not indicate an arrangement to meet the Defendant at 2.00 pm on that day (T61.5). Mr Bell SC submits, with some justification, that the Plaintiff's affidavit was seeking to distance him from any arrangement to meet with the Defendant at that time. In this way, the Plaintiff was adjusting and re-adjusting his case to suit the needs of the moment. I accept this submission. This is a further illustration of a tendency demonstrated in other parts of the Plaintiff's evidence. It serves to undermine his credibility and reliability as a witness. 103 Far from assisting the Plaintiff in these proceedings, I consider that Items 33 to 35 for 3 June 1998 undermine his case in a substantial way. I am satisfied that the Plaintiff wrote Item 33 after February 2000, most likely in February or March 2003. I am satisfied that Item 33 was neither true nor contemporaneous in its content. I am satisfied that the entry was written by the Plaintiff at a time when he considered that it would best serve his interests in the litigation then on foot before the Federal Court of Australia. In forming these conclusions, I have had regard to the gravity of the allegation made against the Plaintiff, but am satisfied, on the balance of probabilities, that he created these entries in the manner and at the time which I have indicated and that the entry is not a true account of events on 3 June 1998.

Other Credit Issues Affecting the Plaintiff 104 Mr Bell SC has submitted that the Plaintiff is prepared to lie and give false evidence when it suits his interests. A number of topics were taken up in cross-examination of the Plaintiff to support this submission. There is force in each of these submissions and I accept them. 105 Mr Bell SC submitted, firstly, that the Plaintiff was prepared to make false statements to Mr Hayashi of HIS Travel when it suited his personal interests. It was a condition of the Bank's offer of finance that Deangrove secure 15 unit presales before settlement of the loan. On 5 June 1998, the solicitor for Mr Hayashi wrote to the Defendant and advised that Mr Hayashi would enter into a put-and-call option for contracts for the purchase of 36 units. The facility was later varied to allow settlement to occur before sale of the units on the basis that Deangrove had provided evidence that 36 units would be sold within 14 days of settlement of the land purchased. On 10 August 1998, the Bank advised Deangrove that no further progress payments would be made until the presales had been confirmed. 106 On 30 September 1998, the Plaintiff wrote to the Bank's Chief Solicitor urging the Bank to write to Mr Hayashi's solicitor and put him on notice that he was in breach of his undertaking (to have Mr Hayashi sign contracts for the purchase of the 36 units) and that the Bank would hold him responsible for any loss or damage that may be suffered. On the same day, the Plaintiff wrote to Mr Hayashi and told him that "this whole thing is out of my hands and the matter is now between the Commonwealth Bank and Mr Hynes" (Exhibit L, page 716C). On 11 May 1999, the Plaintiff wrote to Mr Hayashi's representative in Australia, Mr Sawada, and stated that he had made a number of representations to the Bank for the purpose of ensuring that the Bank would not pursue litigation against Mr Sawada and HIS Travel (Exhibit L, page 1028A). 107 The Plaintiff accepted that the assertion in his letter of 11 May 1999 was false to his knowledge (T85.39, 85.58, 86.24). He agreed that he made this assertion to "take the pressure off" (T86.29). Although the Plaintiff readily acknowledged that he had made an incorrect statement in the letter knowing it to be incorrect, he would not accept that it constituted a "lie". He was asked (T85.27-86.20): "Q. Those two statements you made in paragraph 4 were lies weren't they? A. They were incorrect.

Q. If you say something that is incorrect and you know it is incorrect that is a lie isn't it? A. It depends how you say it. If I tell you it is fine outside and it's pouring rain then that's a lie. But if I am using it as a means to soften the position and I had had a number of discussions with various people at the bank about it and they had made it clear they were not going to pursue it, and that we were making every effort to substitute the sales which we had already well advanced at that time at May, we were in discussions with a public company to sell fifty units, and I think that I am not saying the bank were considering suing them, they weren't, but they certainly would have had a different view I would have assumed." (emphasis added) 108 In this exchange, the Plaintiff has engaged in a semantic debate concerning the meaning of a "lie" in business. In effect, the Plaintiff acknowledged a willingness to tell deliberate untruths to "soften the position" and to "take the pressure off" in a setting where it suited his commercial interests to do so. The Defendant submits that this provides a telling insight into the honesty of the Plaintiff and sheds light upon his approach to giving evidence in the present proceedings where he may perceive that answering questions in a particular way may advance his commercial interests. I accept this submission. 109 The Defendant points to a second example of evidence damaging to the Plaintiff's credit. A condition of the Bank's offer of finance was that Deangrove obtain an irrevocable offer letter from a lender committing to provide take-out finance at a 55% loan-to-value ratio for all units remaining unsold on completion of the project (Exhibit L, page 271(h)). On 15 April 1998, the Plaintiff faxed to the Bank details of two letters of offer for take-out finance (Exhibit L, pages 288A-Q). The Plaintiff agreed that to accept the two offers he had to provide a total of $30,000.00 to the financier and sign acceptances within seven days of 14 April 1998 (T81.12). These things did not occur and as a result, the Plaintiff agreed that the offers had lapsed by about 21 April 1998 (T81.20). The Plaintiff knew that by the end of May 1998, he did not have take-out finance in place (T81.24). In an affidavit sworn by the Plaintiff on 17 March 2003, he asserted at paragraph 36 that he had told the Defendant on 5 June 1998 "I don't want a problem as I will let the take-out finance go" (Exhibit A, page 346). The Plaintiff admitted that if he had said that to the Defendant, it would have been a lie (T82.1). Later in evidence, the Plaintiff attempted to step back from this position, withdrawing his characterisation of the statement as a "lie" (T87.14). I accept the Defendant's submission that this evidence provides further insight into the credit of the Plaintiff and points to an evasive and manipulative approach to the giving of evidence. 110 The Defendant points to a third illustration adverse to the Plaintiff's credit in his dealings with Mr Millot of NZI Securities. The Plaintiff was negotiating with Mr Millot for Deangrove to purchase the land at Holloways Beach for the development. The Plaintiff knew when conducting those negotiations that Deangrove's facility with the Bank included provision for a bank guarantee of $1.4 million in respect of the land purchased (T76.11). Knowing this, the Plaintiff falsely represented to Mr Millot that the Bank would only advance $1.15 million in respect of the land (T76.19). The Plaintiff admitted that this was a lie (T76.24). It was a lie to obtain for the Plaintiff and his company a financial advantage (T76.26). 111 It was submitted that the Plaintiff's dealings with Mr Wood of BMC Special Projects provided a further example and adverse to the Plaintiff's credit. On 28 May 1998, the Plaintiff wrote to Mr Wood in relation to finalising the arrangements with BM Culley's engagement as the builder for the development (Exhibit L, page 324). The Plaintiff accepted that at the time he was attempting to get the builder to speed things up and get on with the job (T77.11). In the letter, the Plaintiff falsely asserted that the Bank's condition for funding had been satisfied. The Plaintiff knew when he wrote the letter that all of the Bank's conditions had not been satisfied (T78.6). 112 Under cross-examination, the Plaintiff debated whether the letter was asserting that the Bank's conditions had been satisfied or whether it merely asserted that he was confident that they would be (T79.49-80.13). The Defendant submits that this is a further example of the Plaintiff making a knowingly false statement to obtain a benefit for himself and his company, in this case, the faster performance of work by the builder. I accept that this evidence does not assist the Plaintiff's credit.

Conclusions Concerning Plaintiff's Evidence 113 Submissions made on behalf of the Defendant invite strong findings adverse to the Plaintiff. I have given careful consideration to these submissions and the need for a solid foundation before reaching such conclusions. 114 It is difficult to form a view of the Plaintiff as a witness by reference to his demeanour only. It is apparent that he is an experienced businessman. He gave evidence in a controlled and unemotional way. However, the content of his evidence speaks tellingly against him. He has given a variety of accounts concerning important topics. At the least, his evidence is unreliable. No finding adverse to the Defendant ought be made based on the Plaintiff's evidence alone. 115 However, an assessment of the Plaintiff's evidence does not end with his unreliability. He has a strong personal and financial motive to allege forgery against the Defendant. He has demonstrated a pattern on prior occasions, both in his business dealings and in his evidence before Sackville J to mould his evidence in a manner which he perceives will best suit his interests at the time. In my view, the Plaintiff has adopted the same approach in evidence in these proceedings. 116 The Plaintiff's explanation in these proceedings as to why his memory has improved since March 2003 concerning the events of 3 June 1998 is not plausible. He said in evidence that he had "read a lot of documents since then" and that this involved mainly looking in his diary (T16.5-20). The Plaintiff had possession of his diary (Exhibit B) at all times. It is apparent that he examined it closely for the purpose of preparing the typed notes which he provided to Mr Butler in March 2000 (Exhibit C). It is difficult to see that further reading of the diary in and after March 2003 would assist the Plaintiff's memory of events. In reality, the Plaintiff has no reasonable explanation for his allegedly improved memory of events on 3 June 1998. His current explanation for his improved memory reflects adversely upon the Plaintiff and fortifies the conclusion that his evidence concerning critical events is neither reliable nor credible. 117 I am not prepared to act upon the evidence of the Plaintiff unless his evidence is corroborated by other independent and reliable evidence.

I am aware that Mr Jeans alleges that I forged his signature appearing on page 12 of the guarantee. I strongly deny this. I have never and would never sign a document in the name of a customer. I had no reason to forge Mr Jeans' signature. If I had noticed that he had not signed the guarantee at any time while it was in my possession, I would have simply called him and asked him to come in and sign it." 120 Mr Ireland QC developed an argument in submissions arising from the Bank's internal memoranda (Exhibits E and L) and cross-examination of the Defendant that the Defendant had failed to comply with requirements of the Bank in a number of respects on 3 June 1998 and thereafter had made misleading statements to his superiors concerning aspects of the Holloways Beach Project. It was submitted that these aspects provoked fear in the Defendant which motivated him to forge the Plaintiff's signature on or before 24 June 1998. 121 Mr Ireland QC submitted that the Defendant had failed to comply with the Bank's written procedures in the manner in which he had Mr Bruce sign his guarantee on 3 June 1998. The Defendant explained his position in his affidavit of 10 March 2006 (paragraphs 20-22) to place in context his approach to Mr Bruce as a "vulnerable guarantor". I accept the Defendant's account on this issue. 122 The Plaintiff submitted that misleading statements were made by the Defendant in a memorandum to his superior, Mr Roams, on 10 June 1998. It was submitted for the Plaintiff that, amidst a series of procedural irregularities, the Defendant discovered that the Plaintiff had not signed the guarantee and determined then to forge his signature. Mr Ireland QC submitted that this course was taken through fear of the internal consequences within the Bank and the large borrowings which had been advanced by that stage on an unsecured basis. 123 Mr Ireland QC emphasised in submissions the Bank's internal inquiry commenced in July 1998 concerning the Holloways Beach Project. A memorandum was prepared by Mr Starkey of the Bank's Compliance and Monitoring Department and his report was critical of the Defendant. Criticisms were made of the Defendant's written response of 4 August 1998 to Mr Starkey's memorandum. The Plaintiff submitted that the Defendant was in deep trouble with the Bank and that this provided a barometer of the climate in which he had determined, in June 1998, to forge the Plaintiff's signature. By September 1998, advances in excess of $2.3 million had been made to Deangrove without the formal discount facility having been actioned within the Bank. All of this, it was submitted for the Plaintiff, shed light upon the Defendant's thought processes at critical times and supported the Plaintiff's case that the Defendant had forged his signature on the guarantee by 24 June 1998. 124 Mr Bell SC submitted that the Plaintiff's contention that the Defendant's fear pressured him to forge the Plaintiff's signature lacked logical foundation. Firstly, the proposition was squarely rejected by the Defendant himself. Secondly, it was common ground that the Plaintiff had signed page 13 of the guarantee on 3 June 1998, that by 24 June 1998, Deangrove had drawn down $1.47 million only out of the total facility of $7.55 million (Exhibit L, page 56) and that, if at any time between 3 and 24 June 1998, the Defendant had realised that page 12 of the guarantee had not been signed, he could have simply asked the Plaintiff to sign it (Defendant's affidavit, 10 March 2006, paragraph 25; T154.33). It would have been obvious to the Defendant that the Plaintiff would have signed it, because if he did not, the Bank would have refused to advance any more money under the facility. 125 It was submitted that no rational proposition had been advanced or put to the Defendant about what it was that he was so afraid about that he would commit a criminal act and forge the Plaintiff's signature. 126 Insofar as the Plaintiff criticised procedural deficiencies on the part of the Defendant identified in the Bank's internal inquiry, Mr Bell SC submitted that the Defendant was not on trial for negligently implementing a loan. With respect to one area of deficiency, it was submitted that the Defendant did not properly understand the difference between the parties agreeing to exchange contracts for the sale of units within 14 days and the parties agreeing to enter into the put-and-call options for the exchange of contracts (T138.4). The evidence supports the Defendant's submission on this issue and I accept the submission. 127 Mr Bell SC submitted that none of this provided a rational explanation for the Defendant engaging in a criminal act of forgery. The Bank's internal inquiry did not commence until July 1998, after the time when the Plaintiff alleges that the Defendant forged his signature. It was submitted that there was no rational basis to suggest that the Defendant was being dishonest to "cover his tracks" (T148.18). 128 Mr Ireland QC put to the Defendant that he had tailored the truth in various 1998 memoranda with respect to aspects of the Deangrove transaction to ensure approval was given to the loan facility. The Defendant denied that he had tailored the account given to his superiors or was covering up deficiencies in procedures to facilitate the approval of the loan facility. 129 I have difficulty seeing what personal advantage there would be for the Defendant in misrepresenting to his superiors aspects of the transaction to ensure approval. No motive by way of personal gain was suggested to the Defendant in cross-examination. 130 The Defendant was adamant in his denial that he had forged the Plaintiff's signature. At the end of cross-examination, he volunteered that if he had observed that the Plaintiff had not signed the guarantee, he would have requested him to do so. This evidence rings true. There seems to be no good reason why the Defendant would think, at that time, that the Plaintiff would be unwilling to sign the guarantee. After all, the Plaintiff was very keen to obtain the ongoing funding by the Bank for the purposes of the Deangrove project. 131 The Defendant was a cautious and somewhat guarded witness. That is not unexpected given that his involvement in this transaction has been challenged in separate curial proceedings over several years and that it is alleged, in the current proceedings, that he has forged the signature of another person. He commenced employment with the Bank in January 1976 and has worked in branches, including as a suburban branch manager, as well as in the business and corporate side of the Bank. His demeanour was consistent with that of a person who had been a bank officer for many years. 132 It is difficult to see that there would be any personal advantage for the Defendant to forge the Plaintiff's signature. The context then prevailing does not provide any credible explanation as to why a bank officer would commit such an extraordinary and criminal act. In my view, the evidence of the Defendant should be accepted in his denial that he forged the Plaintiff's signature on the guarantee document. 133 At any point where there is a conflict between the evidence of the Plaintiff and the Defendant, I accept the evidence of the Defendant.

The Evidence of John Richard Bruce 134 Mr Bruce was called as a witness in the Defendant's case. At relevant times, he was the sole director of John Bruce & Partners Pty Limited, an architectural firm. By 1998, he had become a business associate of the Plaintiff with an involvement in the Holloways Beach Project. Together with the Plaintiff, he was an applicant for the loan facility. It was a condition of acceptance of that loan facility that both he and the Plaintiff provide personal unlimited guarantees. It was in this context that he was called to give evidence in the Defendant's case. 135 Mr Bell SC sought leave to cross-examine Mr Bruce pursuant to s.38(1)(a) Evidence Act 1995 on the basis that evidence to be given by him, in some respects, was unfavourable to the Defendant. Mr Ireland QC advanced no submission contrary to a grant of leave under that section. I was satisfied that leave ought be granted to the Defendant pursuant to s.38 and made an order to that effect. 136 In an affidavit sworn on 31 January 2002 in the Federal Court proceedings, Mr Bruce stated that a meeting took place on the afternoon of 3 June 1998 at which were present the Plaintiff, the Defendant and himself. His affidavit included the following (part Exhibit 3): "13. Steve Cleary an Officer of the CBA, arranged with Jeans for Jeans and I to meet with him in his office on 3 June 1998 to 'sign some documents'. At the meeting one of the documents produced was the proposed Mortgage document and this was handed to Jeans, as the sole Director of Deangrove. Jeans subsequently signed this, on behalf of Deangrove on 12 June 1998, in his capacity as sole Director. Another document which was handed to me was a Personal Guarantee document which I had not previously seen prior to that time. A copy of the said Guarantee is annexed marked A. Cleary said 'it is absolutely necessary for the guarantee to be signed here and now'. A conversation then ensued the effect of which was:- Cleary said 'The Guarantee needs to be signed now. I am out on a limb because JBP has issued the first draw-down certificate'.

I said 'I hear your logic, but for my part my rights say that I should have me [sic] lawyer advise me. Let me talk with Tony'. 14. Jeans and I had an aside conversation. I then said to Cleary: 'I am not really happy about signing this Guarantee today, it all seems to be too much of a rush; however, what we are guaranteeing is what is in the Letter of Offer?' Jeans said 'Yes'. I said 'And the Bank has accepted the take-out funding proposal?' Jeans said 'Yes'. I then said to Cleary: 'If we sign this, Steve, who can witness it? Tony and I cannot witness each others guarantee because I think that would have legal holes in it?' Cleary said 'I will witness and that is acceptable to the Bank'." 137 Mr Bruce's evidence before Sackville J on 31 March 2003 included the following answers in response to Mr Ireland QC (Exhibit A, T514-515): "And where were you on that day when you were first requested to sign the guarantee or was it on some earlier day? --- It was the day previous we had a phone call from, Mr Jeans advised me that we had a phone call from Steve Cleary to say that the guarantees needed to be signed. … And you're telling the court that on 2 June, 1998 he told you that there was a guarantee to be signed by you and by him? --- That's right. But it was not on that day that you did anything about that? --- No. How did it come about that you specifically went somewhere else to sign documents, how did that come about? --- Cleary [sic] , I can't imagine, Clearly [sic] didn't ring me and I think I would have only known about the location for the signing from Mr Jeans. And did you go to the BBC, that is the Business Banking Centre? --- Yes. In the city? --- Yes. The Commonwealth Bank? --- Commonwealth Bank, yes. And did you go there about 2 o'clock? --- I did. Did you have any engagement that day? ---Yes, in that evening yes, I was rather, put out is not the word, but I was anxious not to be there, be at home with my family. When you say be there, you mean be at the bank? --- Be at the bank, yes. You've said in your affidavit that at that stage you had not actually looked at the revised letter of offer dated 2 March, 1998? --- That's right. When you got to the bank at 2 o' c lock on 3 June, 1998 who was there? --- Cleary only to start with. I'm sorry? --- Mr Cleary only to start with, Steve Cleary only to start with. Mr Jeans arrived soon after. And what immediately happened next once you got to the bank, did you speak to Mr Cleary? --- Yes, Mr Cleary indicated that we --- No, just take it bit by bit. Did you speak to Mr Cleary before Mr Jeans arrived? --- Yes. Can you tell us please what did Mr Cleary say to you and what did you say to him? --- Mr Cleary was a personable sort of guy and he'd been helpful to us, it was just chit-chat, we didn't start the show until Mr Jeans basically arrived. And where were you at that stage? --- Sitting in a meeting room adjacent to Mr Cleary's office. HIS HONOUR: This is at the Business Banking Centre? --- That's right. MR IRELAND: And you say Mr Jeans arrived soon after that? --- He did. And how long was it between Mr Jeans arrival and your departure? --- I'm always on time at appointments so I would have been there at 2 o'clock for sure and Mr Jeans would arrive within 5 or 10 minutes and I was gone by 3. HIS HONOUR: I didn't hear the last part? --- I was gone by 3. MR IRELAND: And did you leave alone? --- I did. And when you left do you say Mr Jeans remained or had he gone already? --- No, Mr Jeans was still there when I left." 138 In essence, Mr Bruce told Sackville J that the Defendant had contacted the Plaintiff on 2 June 1998 indicating that the guarantees needed to be signed by Mr Bruce and the Plaintiff and arranging a meeting the next day for that purpose. On 3 June 1998, Mr Bruce arrived first and spoke to the Defendant with the Plaintiff arriving a little later. Mr Bruce signed his guarantee in the presence of the Defendant and the Plaintiff. During a three-way conversation, the Defendant said to the Plaintiff and Mr Bruce that he needed the guarantee signed that day. Mr Bruce left the Bank before the Plaintiff did. 139 Mr Bruce's evidence before Sackville J provides unequivocal support for the Defendant's evidence that a meeting took place on the afternoon of 3 June 1998 at the Bank premises involving the Plaintiff, Mr Bruce and the Defendant and that the purpose of the meeting was to sign security documents including the guarantees. 140 In evidence before Sackville J, Mr Bruce stated that he had not seen the Plaintiff sign any guarantee in his presence on 3 June 1998. Mr Bell SC submits that this aspect of Mr Bruce's evidence ought be approached with caution. Shortly before he gave this evidence before Sackville J, the Plaintiff had asserted for the first time that the disputed signature on page 12 of the guarantee was not his. Mr Bruce was seeking to amend his own pleadings in the Federal Court to rely upon the Plaintiff's alleged non-signature in his own defence. Accordingly, Mr Bell SC submitted that Mr Bruce, consciously or subconsciously, had a motive to mould his own evidence to suit his needs at that time. It was this argument which underlay the application to treat Mr Bruce, for certain purposes, as an unfavourable witness under s.38 Evidence Act 1995. 141 Mr Bruce attended in answer to a subpoena to give evidence in the present proceedings. He declined to confer with the Defendant's legal representatives before entering the witness box (T160.6). He confirmed the content of his affidavit sworn 31 January 2002 and his evidence given before Sackville J on 31 March 2003 (Exhibit 3). Mr Bruce asserted before me that the Plaintiff did not sign anything at the meeting with the Defendant on 3 June 1998 whilst he (Mr Bruce) was there (T161.30). Mr Bruce conceded in his evidence before me the possibility that the Plaintiff may not have been present at the meeting with the Defendant on 3 June 1998 and that he may have been thinking of other meetings which he and the Plaintiff had with the Defendant (T180.31). 142 I accept the Defendant's submission that the most reliable account given by Mr Bruce concerning the events of 3 June 1998 was that contained in his affidavit of 31 January 2002. In that account, he stated that a meeting occurred with the Defendant at which both he and the Plaintiff were present on 3 June 1998. His evidence before Sackville J was that the very purpose for this meeting was to enable the security documents, including the guarantees, to be signed by the Plaintiff and himself. All of this evidence supports the Defendant's case that such a meeting took place and undermines the Plaintiff's case that the guarantee would not have been signed at a meeting arranged for that very purpose. 143 It was the evidence of the Plaintiff himself that he went to the Bank's premises on the afternoon of 3 June 1998 with the intention of signing an unlimited personal guarantee with respect to Deangrove's debt to the Bank (T8.49). The Plaintiff states that he signed a variety of documents that afternoon and, indeed, he believed that he had signed the personal guarantee on that occasion. He now denies that a face-to-face meeting took place with Mr Jeans on that afternoon. 144 Mr Bruce cannot be characterised as an ally of the Bank or the Defendant, either at the time of the Federal Court proceedings or at the present time. He said that his business was "in turmoil" in 2003 as a consequence of the Bank's actions (T171.57). He settled with the Bank for $50,000.00 during the course of the Federal Court proceedings (T172.21). 145 I accept Mr Bruce's account that there was a meeting on the afternoon of 3 June 1998 attended by the Plaintiff, the Defendant and himself. I accept Mr Bruce's account that the purpose of this meeting had been expressed to him as the desire by the Defendant to have the personal guarantees signed by Mr Bruce and the Plaintiff. I accept the account of Mr Bruce that he signed his guarantee on that afternoon and that the guarantee was witnessed by the Defendant. 146 It is submitted for the Defendant that I should not accept the evidence of Mr Bruce that he did not observe the Plaintiff signing any documents at that meeting. Given the element of reconstruction and the passage of time emphasised by Mr Bruce himself during his evidence, it remains open, in my view, to conclude that the Plaintiff did sign documents in his presence on that day. 147 However, a significant element of Mr Bruce's evidence before Sackville J was that the Plaintiff and the Defendant remained following his departure at about 3.00 pm on 3 June 1998. Clearly, Mr Bruce is not in a position to give evidence concerning what transpired following his departure from the meeting. There was an opportunity for the Plaintiff to sign documents, including the guarantee, in the presence of the Defendant on that afternoon. The Plaintiff admits that he signed a range of documents that afternoon although (on his version) not in the presence of the Defendant. It is the Plaintiff's case that he believed that he had signed the guarantee at that time. The Plaintiff does not assert that he intentionally withheld his signature from any document on that occasion. The evidence of Mr Bruce serves as support for the Defendant on a number of significant aspects which are relevant to this case.

The Concurrent Evidence of Mr Westwood and Mr Dubedat 148 Mr Dubedat was commissioned to provide an opinion for the Plaintiff concerning the disputed signature and he provided a report dated 28 October 2004 (Exhibit G). Mr Westwood was commissioned on behalf of the Defendant to provide an opinion concerning the disputed signature and provided a report dated 10 March 2006 (Annexure A, affidavit of Mr Westwood, 10 March 2006). Mr Dubedat provided a further report dated 24 May 2006 responding to a number of issues raised by Mr Westwood (Exhibit H). 149 A joint report dated 8 June 2006 was prepared by Mr Westwood and Mr Dubedat following a joint conference directed under Part 31 r 25 Uniform Civil Procedure Rules ("UCPR"). With the consent of the parties, an order was made that Mr Westwood and Mr Dubedat give concurrent evidence for the purposes of Part 31 r 26 UCPR. 150 The joint report (Exhibit K) indicated areas of agreement and disagreement between the experts. Following the joint report, Mr Westwood prepared a supplementary report dated 12 June 2006 and Mr Dubedat reviewed that report in his further report dated 14 June 2006 (Exhibit J). The reports of 12 and 14 June 2006 were prepared after each expert had an opportunity to examine the original guarantee document containing the disputed signature (Exhibit 4). 151 Both Mr Westwood and Mr Dubedat are well qualified to give expert evidence with respect to document examination. Mr Westwood has undertaken questioned document examination for more than three decades. He served as officer-in-charge in the Document Examination Bureau of the Commonwealth Police/Australian Federal Police from 1973 to 1983. Between 1984 and 1987, he served with other federal departments in the area of document examination. Since 1987, he has been engaged in private practice in the field of document examination. He frequently gives evidence in criminal and civil proceedings with respect to questioned documents. Mr Dubedat commenced formal training in the field of forensic document examination in 1987 whilst with the New South Wales Police Service. Since 1998, he has been in private practice as a document examiner. He has given evidence in a number of criminal and civil proceedings with respect to questioned documents. 152 The original reports of Mr Dubedat and Mr Westwood reflected significantly different conclusions. Mr Dubedat concluded that it was more probable than not that the disputed signature was written by someone other than the Plaintiff. Mr Westwood concluded that it was very probable that the disputed signature was written by the Plaintiff. The two experts have maintained those positions through the process of the joint conference for the purpose of preparing a joint report, and during their concurrent evidence in these proceedings. 153 The opinions of Mr Westwood and Mr Dubedat appear at paragraphs 40 and 41 of the joint report of 8 June 2006: "40. Mr Dubedat does not dismiss the possibility that the questioned signature may have been written by Mr Jeans but he believes this to be unlikely. Mr Dubedat is of the opinion that there is insufficient evidence in the questioned signature to implicate Mr Jeans as the author.

Mr Westwood is still firmly of the opinion that the questioned signature was very probably written by Mr Jeans in a somewhat distorted manner. He cannot determine if the distortion was intentional, an extreme variant or accidental." 154 In circumstances where the Plaintiff bears the onus of proof with the Briginshaw gloss, this conflict in reputable expert evidence does not assist him. This issue is not to be resolved in isolation and the conclusions to be reached ought have regard to my findings concerning the reliability and credibility of the evidence of the Plaintiff, the Defendant and Mr Bruce. 155 The handwriting expert evidence forms one part of the body of evidence, both oral and documentary, upon which I must base my findings of fact. It would be erroneous to treat the expert evidence as being, in some way, decisive on its own in a case such as this: Gawne v Gawne (1979) 2 NSWLR 449 at 453A-B, 455-456. In Gawne v Gawne, Glass JA (Reynolds JA agreeing) said at 453A-B: "I am satisfied that his Honour fell into error in his evaluation of the evidence before him. In conceding a dominant role to the expert testimony, he misapprehended the weight of the remaining evidence which, in a cogent way, established the probability that the signatures were genuine, and the improbability that they had been forged. If the opinion evidence of the handwriting experts were put to one side, the whole of the lay evidence made out a strong circumstantial case that the documents of the 9th August, 1968, had in fact been executed by F. C. Gawne." 156 This statement, expressed in a different factual context, must be kept in mind in this case. In my view, the evidence apart from the expert evidence establishes the probability that the disputed signature was written by the Plaintiff and the improbability that it was forged by the Defendant. Once regard is had to the expert evidence, this conclusion, in my view, is strengthened. 157 As the tribunal of fact, I am entitled to make a comparison between handwriting that is disputed and admitted, although I should pay particular attention and regard to expert testimony on the issue: R v Doney (2001) 126 A Crim R 271 at 280 [61] (Ipp AJA, Hidden and Barr JJ agreeing). 158 Mr Westwood has expressed himself in terms of what is "very probably" the case. An opinion expressed in such terms has particular weight in the area of expert handwriting evidence: R v Hannes (2000) 158 FLR 359; [2000] NSWCCA 503 at [504]. 159 It is common ground between the parties that the disputed signature on page 12 of the guarantee is significantly different to the Plaintiff's usual signature. There are three available explanations for this:

(j) the tapered subtle anti-clockwise terminal spur." 164 Mr Westwood and Mr Dubedat agreed on features (c), (d), (e), (f), (g) and (h). It was also agreed that the disputed signature was written with speed and fluency. However, Mr Dubedat said that features (c)-(h) relate to a relatively simple back-and-forth stroke. Mr Westwood joined issue with this characterisation and emphasised that the relationship between subtle features was significant. 165 Mr Westwood and Mr Dubedat did not agree on features (a), (b), (i) and (j). 166 Mr Westwood maintained that there were rare and subtle features of the Plaintiff's signature visible in the disputed signature, but Mr Dubedat disagreed with this (T199.8). In explaining his opinion, Mr Westwood pointed to features and relationships within the signature which are not obvious including the ratio of the lengths of the left sides of the second and third peak elements being the same (T199.22). 167 Mr Dubedat contended that because the starting point of the questioned signature was different to the starting point of the Plaintiff's specimen signatures, he did not believe that the Plaintiff was the writer of the questioned signature (T200.4). However, Mr Westwood observed that, where a signature is a disavow signature, it is common for the writer to change the beginning of the signature (T200.31). 168 With respect to feature (a) (the anti-clockwise elliptical introduction), Mr Westwood contended that this feature was accounted for in five of the Plaintiff's specimen signatures. He stated that the number of times in which it appears in specimen signatures is irrelevant as its presence demonstrates that it is part of the range of variation of this feature or element in the specimen signatures. Mr Dubedat agreed that the number of times when a feature appears in specimen signatures is irrelevant (Exhibit K, paragraphs 11-12). 169 With respect to feature (b) (inflection), Mr Westwood pointed to four examples of inflection in the Plaintiff's specimen signatures. Mr Dubedat did not consider that these specimens identified inflections. Mr Westwood observed that the degree of inflection in the disputed signature is subtle is at is in a number of the Plaintiff's specimen signatures (T214.19). For the signature to have been a forgery, the forger either must have very carefully studied many of the Plaintiff's signatures, or been very lucky. It was submitted for the Defendant that neither proposition is as convincing as the hypothesis that the Plaintiff wrote the signature. I find Mr Westwood's reasoning on this issue persuasive and I accept the Defendant's submission. 170 With respect to feature (i) (the absence of a large circular movement at the end of the disputed signature), Mr Westwood identified seven examples in the Plaintiff's specimen signatures of a signature ending without a circular loop. Mr Dubedat could not see the similarities amongst these examples. There is a dispute between the experts on this issue as to whether relevant similarities exist amongst the examples. However, Mr Dubedat agreed that a number of specimen signatures did not demonstrate a large circular movement at the end (T216.5). On balance, I prefer Mr Westwood's conclusion on this issue. 171 With respect to feature (j) (the tapered anti-clockwise terminal spur), Mr Westwood identified four examples of a terminal spur amongst the Plaintiff's specimen signatures. Mr Dubedat agreed that this feature occurs in a small number of specimen signatures (T218.12). However, the spur is consistently longer in the specimen signatures so that, in his view, it falls outside the range of variation of the specimen signatures (Exhibit K, paragraphs 23-27; T217.13). Mr Westwood's response was that the direction of the line, preceding the feature was irrelevant, as he was focussing on the existence of the feature itself (T217.23). 172 In the end, Mr Dubedat could not discount as a genuine possibility the hypothesis that the questioned signature was written by the Plaintiff (T223.11). It is clear that the experts have differences of opinion as to the weight to be attached to the various features of the disputed signature and the Plaintiff's specimen signatures. Against this background, Mr Bell SC submits that the most apposite remark made by either expert is that attributed to Mr Westwood at paragraph 36 of the joint report of 8 June 2006 (Exhibit K): "Mr Westwood comments that, if the questioned signature was not written by Mr Jeans, the 'forger' has paradoxically demonstrated an intimate knowledge of Mr Jeans' signature style; the ability to incorporate several rare and subtle features into the questioned signature without hesitation or deliberation; and has inexplicably introduced a gross error by locating the anti-clockwise circular movement at the beginning of the signature - an error which Mr Westwood claims was bound to invite close scrutiny." 173 The Defendant submits that a critical feature is that the disputed signature is so significantly different from the signature on page 13 of the same document, and all of the Plaintiff's other signatures, that it is highly improbable that it is the product of someone attempting to forge his signature. This reasoning underlines Mr Westwood's conclusion which is adverse to the Plaintiff. 174 I have observed earlier in this judgment that the expert handwriting evidence is but one part of the body of evidence to be considered in resolving the factual questions calling for resolution in these proceedings. In my view, the detailed explanation of Mr Westwood for his opinion is persuasive and his conclusion is that which I favour. I do not doubt that the opinions of Mr Dubedat are honestly held by him. However, there are areas of detail where Mr Dubedat made concessions which point to a conclusion that the Plaintiff was the author of the disputed signature. The analysis of the handwriting evidence set out above supports the conclusion which has been reached by Mr Westwood. 175 I do not accept that Mr Westwood was, in some way, an advocate in support of the Defendant's case and not an objective witness. His discussions with Mr Dubedat during the joint conference concerning an inconclusive opinion does not, in my view, detract from Mr Westwood's opinion and his reasons for it. Mr Westwood's thorough analysis explains a conclusion which, in my view, ought be preferred.

(h) the Plaintiff wrote Item 33 in the diary after February 2000 for the purpose of assisting his interests in the Federal Court litigation - the version in Item 33 was not true and the Plaintiff was aware of that when he wrote it. 179 I have had particular regard to the submission of Mr Ireland QC that the Plaintiff would not use a disavow signature to leave open plausible deniability at a later time but then commence and conduct the Federal Court proceedings upon the basis that he had signed the guarantee and persist with that case until the midst of his own cross-examination. 180 Mr Bell SC submitted that it was not necessary to determine in these proceedings whether the Plaintiff intentionally placed a disavow signature on the guarantee. He submitted that it was sufficient that the evidence of Mr Westwood was to the effect that it was the Plaintiff's writing. Mr Westwood left open the alternatives of an intentional disavow signature or an unintended variation by the Plaintiff. Nevertheless, Mr Bell SC pointed to the fact that the concept of plausible deniability involves an assessment of the mental processes of the writer. Mr Bell SC suggested that the Plaintiff may well have forgotten that he had written the signature in this way until he reminded himself of it by an examination of documents in the witness box. It appears that the Plaintiff perceived he was under considerable pressure in cross-examination before Sackville J when the forgery claim was advanced. An available inference is that the Plaintiff perceived that the time had come to distance himself from the signature. Whether that state of affairs came about because he had planned it from the beginning with an intentional disavow signature or because he happened to observe a difference in the signature from his usual signature need not be determined. I am satisfied that the Plaintiff advanced his forgery claim in an opportunistic way under the pressure of cross-examination. 181 It is not necessary that I determine this question to resolve the present case. It is sufficient to note my satisfaction that the disputed signature was written by the Plaintiff. However, the Plaintiff has demonstrated a manipulative and evasive approach in his business affairs and in his approach to the giving of evidence both before Sackville J and before me. In my view, the Plaintiff is quite capable of intentionally disguising his signature on the guarantee on 3 June 1998 for possible later use if he thought that it might assist him. 182 The Plaintiff has failed to establish his cause of action in this case. I am not satisfied that the disputed signature is a forgery. Indeed, I am satisfied that the disputed signature was written by the Plaintiff. It was not written by the Defendant.

Reliance 184 It is the Plaintiff's case that the Defendant's conduct amounted to a representation on which the Plaintiff and his lawyers relied. The conduct alleged is the Defendant's forgery of the Plaintiff's signature and his falsely signing as a witness to the forged signature. That conduct is said to constitute a representation that the Plaintiff had signed the guarantee witnessed by the Defendant. It is alleged that the Plaintiff and his legal advisors relied upon the representation by making no enquiry into the genuineness of the signature (ASC, paragraph 20B). 185 It will be recalled that Handley JA held at paragraph 31 of the judgment of the Court of Appeal that, if the Plaintiff proves that he and his solicitor assumed, without carefully checking, that his signature on the guarantee was genuine because it had been attested by the Defendant, any carelessness on their part in failing to check his signature will not be an answer. 186 Mr Bell SC submits that there is no evidence that the Plaintiff or his lawyers relied on the Defendant's alleged conduct. The Plaintiff swore that he did not look closely at the guarantee until his attention was drawn to it in the witness box (affidavit, 22 September 2005, paragraph 26). Mr Butler said that his attention was not directed by anyone to the issue of the signatures on the guarantee and he did not question the Plaintiff about it (affidavit, 4 May 2006, paragraphs 5-7). Mr Butler said that, if any question had arisen concerning the signatures, he would have recommended that a handwriting expert be retained and would also have recommended that pleadings be filed challenging the validity of the guarantee and the Plaintiff's execution of it (affidavit, 4 May 2006, paragraph 6). 187 Mr Bell SC submits that this is not a case where reliance can be simply inferred. Clear evidence ought to have been adduced in the Plaintiff's case as to how he relied on the Defendant's alleged conduct and how that led to the Federal Court determining the case in the Bank's favour. The Defendant submits that this has not been done by the Plaintiff. The Defendant submits that the reliance case is further undermined by the fact that the Plaintiff admitted that he signed the guarantee in his affidavit of 13 March 2000 and in his Statement of Claim of 26 October 2000, at a time when he did not have the guarantee in his possession. In doing so, the Defendant submits that the Plaintiff was not relying upon any alleged representation by the Defendant, rather he was relying on his own recollection of the events of 3 June 1998. 188 Mr Ireland QC submits that there was ample evidence of reliance in the Plaintiff's case in the form of Mr Butler's affidavit referred to above. 189 Given the significance of the reliance issue to the decisions of Mathews AJ in 2004 and the Court of Appeal in 2006, it must be said that the actual evidence of reliance adduced in this hearing by the Plaintiff is thin. There is much to be said for the Defendant's submission that the course of conduct of the Plaintiff in admitting that he signed the guarantee was based upon his own belief that he had done so on 3 June 1998 and not any alleged representation of the Defendant. However, given my findings on the primary issue, it is not necessary to consider this issue further.

(c) when he left the Bank's office, he believed that he had bound himself to an unlimited personal guarantee of Deangrove' debt to the Bank (T9.1). 193 Mr Bell SC submitted that, even if the Plaintiff only signed paged 13 of the guarantee, his conduct was still sufficient to bind himself to the terms of the guarantee. There was no requirement at law for the terms of the guarantee to be in writing, nor was there any requirement for the Plaintiff to sign a document containing those terms. The effect of s.8(1) Imperial Acts Application Act 1969 (NSW) is that s.4 of the Imperial Act 29 Charles II Chapter 3 (the Statute of Frauds 1677) does not apply in New South Wales and there is no statutory equivalent: O'Donovan and Phillips, Modern Contract of Guarantee at [3.300]. 194 The Defendant submitted that acceptance of an offer to enter into a contract can be inferred from conduct if that inference arises from the objective circumstances: Empirnall Holdings Pty Limited v Machon Paull Partners Pty Limited (1988) 14 NSWLR 523 at 531, 534-536. Mr Bell SC submitted that such an inference should be drawn from the conduct of the Plaintiff in this case in signing the letter of acceptance to the Bank dated 8 April 1998, requesting temporary accommodation in February and April 1998, signing the guarantee on page 13 on 3 June 1998 and causing Deangrove to draw down on the finance offered in the Bank's letter dated 2 March 1998. 195 Mr Bell SC submits that such an inference ought be drawn applying the reasonable bystander test: Empirnall Holdings at 531, 534. 196 The Defendant submits that, for the Plaintiff to succeed in these proceedings, he must demonstrate that if he advanced his allegation of forgery against the Bank in the Federal Court proceedings, he would not have had the judgment entered against him. If the Plaintiff had been given leave to advance the allegation of forgery, the Bank would have been entitled to defend it on the basis that irrespective of whether he signed page 12 of the guarantee, he was nevertheless liable according to its terms having bound himself by conduct. On this basis, the Plaintiff would still have been found liable under the guarantee in the Federal Court proceedings. 197 Once again, there is considerable force in the Defendant's submissions on this point. Even if the Plaintiff had established forgery on the Defendant's part, very substantial hurdles lay ahead of him in the present proceedings before a verdict and an award of damages would have been made in his favour.

Costs 198 Mr Bell SC made written and oral submissions that, if a verdict was found in the Defendant's favour, an order should be made that the Plaintiff pay the Defendant's costs on an indemnity basis: s.98(1)(c) Civil Procedure Act 2005; Part 42.5 UCPR. 199 It was submitted that the Plaintiff had made an allegation of criminal conduct against the Defendant on the flimsiest of evidence and without any rational foundation. Either the Defendant was guilty of a criminal offence or the Plaintiff had deliberately propounded a grave allegation which he knew to be false for the collateral purpose of avoiding, or delaying, a bankruptcy order against him. The case depended on the account of the Plaintiff, an admitted liar, and Item 33 in his diary, which was thoroughly discredited in the Federal Court. The expert handwriting evidence tendered in his favour was, at best, inconclusive. Mr Ireland QC acknowledged that the expert evidence was equivocal. In bringing the case to trial, the Plaintiff can be taken to have known of the rigorous standard of proof he needed to discharge before his allegations could be accepted. The Defendant submitted that it must always have been clear, or ought to have been clear, to the Plaintiff that the evidence would not reach that standard. 200 It was submitted that the case as advanced by the Plaintiff was appropriately characterised by Bryson JA in the Court of Appeal at paragraph 54 as being "in the realm of the fantastic" and "a fairy tale". 201 Mr Bell SC referred to the judgment of Sheppard J in Colgate-Palmolive Co v Cussins Pty Limited (1993) 46 FCR 225 at 233 and submitted that an indemnity costs order was appropriate in this case having regard, inter alia, to the Plaintiff making allegations of fraud knowing them to be false, the commencement and continuation of proceedings for an ulterior motive and a wilful disregard of known facts. It was submitted that the particular facts and circumstances of the present case warrant the making of an order for costs on an indemnity basis. 202 It was submitted that where a litigant advances an allegation of serious criminal conduct without strong evidence to support it and that case fails, it is appropriate for the Court to consider ordering the Plaintiff to pay the Defendant's costs on an indemnity basis: White Constructions (ACT) (In Liquidation) v GB White and Ors [2004] NSWSC 303. An order for indemnity costs is also appropriate, it was submitted, where a litigant advances a claim that he knows is false: Zaravinos v Houvardas [2004] NSWCA 421 at paragraph 76. Mr Bell SC submitted that these propositions have application to this case and that an order for indemnity costs ought be made. 203 Mr Ireland QC accepted that, if the submissions of the Defendant adverse to the Plaintiff were accepted at their highest, then the Court would probably accede to an order for indemnity costs (T271.50). He submitted, of course, that those findings ought not be made. In the event that the Plaintiff's claim failed on a basis which did not involve complete acceptance of the Defendant's submissions, Mr Ireland QC submitted that an opportunity might be given to make submissions as to costs following the delivery of judgment. 204 The findings made by me involve, in essence, complete acceptance of the submissions made on behalf of the Defendant. Not only have I rejected the Plaintiff's claim of forgery by the Defendant, but I have found that the Plaintiff himself wrote the disputed signature on the guarantee. Further, I have found that Item 33 in the Plaintiff's diary was created by the Plaintiff a significant time after 3 June 1998 for the purpose of litigation then on foot and that the Plaintiff was aware that the content of Item 33 was untrue when he wrote it. I have rejected the Plaintiff's evidence that there was no face-to-face meeting with the Defendant on 3 June 1998 and have found that such a meeting in fact did take place during which the Plaintiff wrote the disputed signature on the guarantee. 205 As Mathews AJ observed at paragraph 45 of her judgment, the Plaintiff's case in these proceedings involved "a strange proposition" which her Honour foreshadowed "may well encounter serious factual and legal hurdles". However, having regard to the way in which the case was pleaded, Mathews AJ determined that the Plaintiff was entitled to a hearing of the merits of that claim and the majority in the Court of Appeal agreed with this approach. 206 The hearing on the merits has now proceeded before me. My findings involve an emphatic rejection of the Plaintiff's case. To obtain an order for indemnity costs, the Defendant must point to something more than success in the outcome of the proceedings. It is necessary for the Defendant to demonstrate some relevant delinquency or unreasonableness on the part of the Plaintiff: Oshlack v Richmond River Council (1998) 193 CLR 72 at 89; Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616. 207 Having regard to the findings made by me in the present proceedings, I am well satisfied that the Defendant has demonstrated an entitlement to an order for costs on an indemnity basis.

Jeans v Cleary

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Cases Cited (28)

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