Kelly v Australia and New Zealand Banking Group Limited [2014] NSWSC 426 | Case summary

Kelly v Australia and New Zealand Banking Group Limited [2014] NSWSC 426 | Case summary | Zoe

[11]

The Plaintiff's Case 12The essential factual allegation made by Mr Kelly against ANZ was set out in paragraph [7] of the Statement of Claim in the following terms: "On about 7th April 2005 the Defendant, by its servant or agent Greg Asher orally represented to the First Plaintiff and the Second Plaintiff and offered to the First Plaintiff and the Second Plaintiff that the Second Plaintiff would become a member of the Defendant's panel of quantity surveyors if: (a) The First Plaintiff remained a customer of the Defendant, and (b) The First Plaintiff proceeded with the purchase of offices at [XXX] Arthur Street, North Sydney ("the offices") and take a commercial loan from the Defendant to fund the purchase of the offices." 13As noted above, the second plaintiff is Lucrum Consulting Pty Limited. 14Mr Kelly alleges that he wrote to Mr Asher of ANZ on 12 April 2005 in relation to the proposed purchase of the North Sydney property. The authenticity of that letter is a strongly contested issue in the proceedings. In this respect, in paragraph [8] of the Statement of Claim Mr Kelly alleged: "On 12th April 2005 the First Plaintiff confirmed in writing to the said Greg Asher that he would not purchase the offices if the Second Plaintiff was not made a member of the panel of quantity surveyors of the Defendant." 15In paragraph [9] of the Statement of Claim, Mr Kelly further alleged: "On 19th April 2005 in the belief that the Second Plaintiff would be made a member of the Defendant's panel of quantity surveyors and in consideration of the offer referred to in paragraph 7 above, the First Plaintiff accepted the Defendant's written offer of finance for the purchase of the offices." 16As discussed below, Mr Kelly's version of the terms of the conversations he said he had with Mr Asher in relation to the alleged oral representation relied upon in support of his claim (as well as the dates upon which the critical conversation was said to have taken place), varied in his evidence-in-chief and in cross-examination. 17According to the Statement of Claim, on 17 June 2005 Mr Kelly proceeded to acquire the premises in North Sydney with funds borrowed from ANZ to complete the purchase. He alleged that he did so in consideration of the promises made by the Defendant to the First Plaintiff, and in reliance upon the representations referred to in paragraph [7] of the Statement of Claim.

[12]

ANZ's Defence 18In ANZ's Amended Defence filed on 27 September 2012, ANZ denied the allegations pleaded in the Statement of Claim including, in particular, paragraphs [7] to [15]. 19In paragraphs [16] and [17] of the Amended Defence, ANZ raised limitation defences firstly, pursuant to s 82(1) of the Trade Practices Act and secondly, under s 14(1) of the Limitation Act 1969 in respect of the claim for damages for breach of contract. 20In addition, in paragraph [18] of the Amended Defence, ANZ pleaded as a defence the fact that the second plaintiff had been wound up and liquidator appointed, that in consequence the bare right to litigate under s 82(1) of the Trade Practices Act had ceased with the second plaintiff and further the right to litigate under that provision did not vest in the liquidator as a matter of law and was not capable of assignment to Mr Kelly. 21ANZ additionally relied upon the fact that the claim in any event had been dismissed with costs on 5 April 2012 and there had been no purported assignment of any bare right to litigate that claim or the claim for damages for breach of contract from the second plaintiff to Mr Kelly. 22In addition, in paragraph 18 of the Amended Defence it was pleaded: "The first plaintiff has no standing, and as a matter of law is not able, to sue to recover damages in respect of any loss and damage alleged to have been suffered by the second plaintiff." 23ANZ's case in respect of the claim made by Mr Kelly in the Statement of Claim was summarised at paragraph [27] of ANZ's Outline of Submissions dated 5 July 2013 in the following terms: "(a) ANZ did not make a representation, or promise, to Mr Kelly; (b) Mr Kelly did not send the email and PDF to ANZ; (c) ANZ did not receive the email and PDF alleged to have been sent by Mr Kelly; (d) There was no contract to the effect pleaded in the Statement of Claim; (e) ANZ did not engage in conduct in trade or commerce which was misleading and deceptive, or likely to mislead or deceive; (f) In any event, there was no reliance by Mr Kelly on any conduct by ANZ; (g) In any event, there is no causation between any loss alleged by Mr Kelly and any conduct by ANZ; (h) In any event, Mr Kelly suffered no loss by any conduct of ANZ; (i) Further, Mr Kelly is prohibited from suing in respect of any loss alleged to have been suffered by ACN 112 171 034 due to the reflective loss principle; (j) In any event, the claim in contract made by Mr Kelly is statute barred; (k) In any event, the claim in misleading and deceptive conduct alleged by Mr Kelly is statute barred." 24In elaboration of point (d) set out above ("There was no contract to the effect pleaded in the Statement of Claim"), ANZ relies upon relevant principles that apply in relation to the formation of verbal contracts. Whilst ANZ denied the various statements attributed by Mr Kelly to employees of ANZ, and relied in that respect upon the affidavits and oral evidence of each of the witnesses called in its case, it contended that in any event the terms of the alleged promise were insufficiently precise and inherently ambiguous, such that they could not operate as a variation of the loan agreements: ANZ's Outline of Submissions at [23]. 25Reliance was placed, by analogy, upon the decisions in Legione v Hateley (1982) 152 CLR 406 at 435-436; Woodhouse AC Israel Cocoa Ltd SA v Nigerian Produce Marketing Co Ltd [1971] 2 QB 23; and China-Pacific SA v Food Corporation of India (The Winson) [1981] QB 403 at 429-430. 26Attention was also drawn to the observations made in Commonwealth Bank of Australia v Serobian [2009] NSWSC 302 by Hammerschlag J at [362] in relation to cases where spoken words are used as a foundation for a cause of action. In that respect his Honour referred to the proposition that the Court must feel an actual persuasion of their occurrence or existence. Additionally, a court in such cases must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. I will return to these principles in the discussion below. 27In addition, ANZ relied upon the requirement that where particular conduct is alleged to have been misleading or deceptive and is constituted by words spoken, such words must be proved with a degree of precision that is sufficient to enable a court to be reasonably satisfied that they were in fact misleading in proved circumstances: Watson v Foxman (1995) 49 NSWLR 315 at 318-9 per McLelland CJ in Eq. 28ANZ's further submission was that, having regard to the objective intent of the parties, the factual matrix, and the commercial circumstances surrounding the loan agreements, it is clear in this case that the parties intended that the written loan agreements and associated security transactions were to be an all-embracing and binding record of the terms and conditions of the agreements between the parties: Outline of Submissions at [24]. 29ANZ also relies upon a defence that "Mr Kelly is prohibited from suing in respect of any loss alleged to have been suffered by ACN 112 171 034 due to the reflective loss principle". ANZ's submission was that the "reflective loss" principle applies in this case, namely, that a shareholder of a company cannot recover damages merely because the company has suffered damage, and that he or she cannot recover damages that are merely a reflection of a loss suffered by the company: VPlus Holdings Pty Ltd v Bank of Western Australia Ltd (2012) 91 ACSR 545 at [28]. 30In this respect, ANZ's contention was, in effect, that there was no loss suffered personally by Mr Kelly that was separate and distinct from the loss of his company. That principle, it was further contended, cannot be avoided by pleading a cause of action separate and distinct from the cause of action that the company might have: ANZ's Outline of Submissions at [19].

[13]

PART C - CHRONOLOGY 31I set out below a chronological summary of material events that occurred prior and subsequent to the ANZ loan transactions and which were not in dispute. 32On 1 February 2005, Gleeds Australia Pty Ltd commenced trading. Mr Kelly was from that time identified as its Managing Director. 33On 10 January 2005, Mr Kelly met Mr Gerald Olstein, finance broker. Thereafter Mr Olstein spoke to Mr Asher, the then ANZ Relationship Manager, and subsequently collected an ANZ Commercial Application Form. Mr Olstein made an appointment to see Mr Kelly on 24 January 2005. 34On 27 January 2005, Gleeds Australia entered into a lease of the North Sydney premises. It provided for a three-year term commencing 1 February 2005. 35On 28 January 2005, Mr and Mrs Kelly signed an ANZ Commercial Application Form. They also completed a Personal Statement of Financial Position. That statement included the following information:

A mortgage of $450,000 in respect of the Dural property.
An investment loan of $200,000 (in respect of the Blackwall residential investment property). 36On 31 January 2005, Mr Kelly made an offer of purchase for the North Sydney property in the amount of $725,000 less any outstanding rent-free period. 37On 7 February 2005 Mr and Mrs Kelly signed an Originator Services Loan Application with ANZ for the following loans, totalling $740,000:
A Home Loan Fixed Rate - $300,000
A Residential Investment Loan - $280,000
An Equity Manager Loan - $160,000 38On 9 February 2005, Burling Realty wrote to Mr Kelly in respect of his decision to purchase the North Sydney property and congratulated him on his decision to proceed with the purchase. 39On 11 February 2005, Mr Olstein delivered the Originator Services Loan Application to Mr Asher. 40On 18 February 2005, Mr Kelly entered into an Employment Agreement with his company, Gleeds Australia. 41On 8 March 2005, Mr Kelly sent letters on behalf of Gleeds Australia to a number of banking institutions and other financiers indicating an interest in applying for inclusion in the quantity surveyor panel of each. They were: ANZ, Macquarie Bank Ltd, Commonwealth Banking Corporation, St George Bank Ltd, Bank of Western Australia Ltd and Suncorp-Metway Ltd. 42On 22 March 2005, a Credit Memorandum in respect of Mr Kelly's loan application was prepared by ANZ. 43On 29 March 2005, Mr Asher of ANZ confirmed to Mr Olstein that indicative approval had been given for the following facilities:
$720,000 Business Loan in respect of the North Sydney property. The term was for a notional period of three years fixed with interest only payments at 8.42%.
$300,000 three-year Fixed Rate Residential Home Loan (payment being principal and interest) at 6.99%.
$135,000 Equity Manager Account at 7.32%.
$285,000 three-year Fixed Rate Interest Loan at 6.99% (payment being interest only). 44On 13 April 2005, a Letter of Offer was sent by ANZ to Mr Kelly in respect of an ANZ Business Loan (Fixed Rate) with a facility amount of $720,000 for a maximum period of six years for the purchase of the North Sydney property with a fixed interest rate of 7.77% for three years. 45On 19 April 2005, Mr Kelly signed an Acceptance to the Letter of Offer dated 13 April 2005. Mrs Kelly executed the Guarantor Acknowledgment dated 20 April 2005. 46On 20 April 2005, Mr Kelly signed the relevant mortgage in respect of the North Sydney property. On the same date, Mr and Mrs Kelly signed the mortgage in respect of the Dural property. 47On 4 May 2005, ANZ sent a Letter of Offer for a home loan in the amount of $300,000 for a three-year Fixed Rate Home Loan at 6.85% per annum. 48On the same date, 4 May 2005, Mr and Mrs Kelly signed the mortgage in respect of the Dural property. 49On 11 May 2005, ANZ sent a Letter of Offer to Mr Kelly in respect of an ANZ Residential Investment Loan in respect of the Blackwall property for an amount of $300,748.77 at a three-year fixed rate of interest of 6.85%. 50On 17 May 2005, a deposit was paid in respect of the North Sydney property in the amount of $72,000, and contracts were subsequently exchanged. Settlement occurred on 22 June 2005. 51On 24 November 2005, Mr Kelly made a request to ANZ to increase his facilities by an amount of $30,000. On that date, ANZ sent a Letter of Offer to Mr Kelly to increase the facilities in that amount. 52On 22 December 2005, Mr Kelly accepted that Letter of Offer. 53On 10 June 2008, ANZ sent a Variation Letter to Mr Kelly to vary his ANZ Business Loan in respect of the North Sydney property under the ANZ Business Loan (Fixed Rate) in the amount of $719,998 for a maximum loan period of four years and eight months to expire on 6 May 2010. 54On 3 September 2008, Mr Kelly sought a further variation of his ANZ Business loan. 55On 8 September 2008, ANZ sent a Variation Letter in respect of the ANZ Business Loan (Fixed Rate) to Mr Kelly which varied the facility detailed in the Letter of Offer dated 13 April 2005. The Acceptance was signed by Mr Kelly on 15 September 2008. 56On 9 September 2008, ANZ sent a Letter of Offer in respect of his Home Loan for the Dural property and granted Mr Kelly a new home loan with a credit amount of $482,901.72 at a rate of 8.67% per annum. 57On 15 September 2008, Mr and Mrs Kelly signed the receipt and Acceptance for this new home loan. 58On 22 September 2008, ANZ sent a Letter of Offer to Mr Kelly in respect of a new ANZ Residential Investment Loan in respect of the Blackwall property with an amount of credit of $298,494.12 at a rate of 8.67% per annum. 59On 29 October 2008, Mr Kelly signed the receipt and Acceptance in respect of that loan.

[14]

The Plaintiff's Personal Background 60Mr Kelly graduated from the University of Technology, Sydney in 1993 with a Bachelor of Building (Construction Economics) with Honours. 61Subsequently he practiced as a quantity surveyor both in an employed capacity and later as a director of his own practice. 62Since 1993 Mr Kelly has served on a number of industry associations, particulars of which were set out in paragraph [12] of his affidavit sworn on 12 February 2012. 63Mr Kelly is a Fellow of the Australian Institute of Quantity Surveyors and served over a number of years in various positions including as Chairman, Australian Institute of Quantity Surveyors Funders Representative Committee from 2006-2007, and Vice-President of the Australian Institute of Quantity Surveyors from 2005-2007. 64He has written and contributed to a number of articles and newsletters and books in respect of cost estimating, quantity surveying, property tax depreciation, liquidated damages and related construction-industry costs issues. 65On or about 25 October 2004 he prepared a proposal that was submitted to an entity, Gleeds, which formed the basis of his selection as Managing Director of Gleeds Australia Pty Ltd. 66Gleeds Australia was established in Australia on 1 February 2005. Mr Kelly described it as the Australian arm of the international Gleeds Consultancy and it comprised one of 31 offices affiliated with Gleeds worldwide: Affidavit of Mr Kelly sworn 12 February 2011 at [21]. 67Mr Kelly's evidence was that Gleeds Australia was engaged to carry out quantity surveying work on major projects in Australia and overseas. Gleeds Australia is also said to have provided cost management services on various projects, details of which are set out in his affidavit. 68Prior to becoming the Managing Director of Gleeds Australia, Mr Kelly said that he spent four years working as a sole trader. He became involved with Gleeds when he was approached by the directors of a company, CQS Pty Ltd, a business which Gleeds had purchased in Australia. 69Mr Kelly explained that many developers of construction projects required finance and their financiers required the services of a quantity surveyor in respect of the estimated costs of development. 70His evidence was that a number of practitioners carrying out quantity surveying work specialised in undertaking bank services. Such work can provide supplementary income, with the work often requiring the provision of reports during the course of a particular construction project. 71Mr Kelly said that he had in the past undertaken work for ANZ on some projects, including in particular the refurbishment of Grace Bros in Pitt Street, Sydney.

[15]

The Plaintiff's Professional Experience 72The evidence establishes that Mr Kelly, at all material times, was a well-educated person who had acquired both practical experience in a number of areas including, in particular, quantity surveying work, the review of construction contracts and the provision of advice in relation to the same, and the formalities involved in concluding a contract. In addition to the degree of Bachelor of Building (Construction Economics) which he obtained in 1992, he studied law through the Solicitors Admission Board, although he never completed the course. The course of study with the Board took place in about 1992, 1993 and 1994. In that course he studied contract law. 73In addition to his other qualifications, he said that he was a registered tax agent and had been registered for some three years. 74In 2004, he wrote a book entitled "The Property Depreciation Handbook", a book that dealt with the calculation of depreciation of property and it was relevant to the application of certain provisions of the Income Tax Assessment Act 1997. 75In the course of undertaking his legal studies, he prepared an article in 1992 entitled "Liquidated Damages", an article concerned with liquidated damages in construction contracts. 76In the course of his study for the degree of Bachelor of Building (Construction Economics) he stated he studied basic construction law, arbitration law and contract law. 77Mr Kelly also stated that he is a qualified mediator. Although he obtained that qualification, he said he had never actually practiced as a mediator. 78In addition, he has been engaged in the preparation work for litigious matters and has also provided evidence on the cost of construction, in particular the cost of piling. He undertook such work in 2004 and 2005. 79Following graduation he practiced as a qualified surveyor including the position of assistant quantity surveyor and then senior quantity surveyor with an entity, Davis Langdon Australia. That entity undertook work for banking panels. It was whilst with that entity that he worked on the Grace Bros refurbishment. 80In 1998 he left Davis Langdon Australia and went to Resolve Engineering. He was responsible for project management of AMP's Capital Works Program which involved determining and managing budgets, procuring works, defining scopes of work, liaising with building owners, tenants and other parties within AMP. A good deal of the work involved a contract management role, and in this capacity he was engaged to undertake work in relation to commercial contracts, including, in particular, construction contracts. He was required to provide advice internally in relation to such contracts. He agreed that the review of contracts, and providing advice in relation to them, was part and parcel of what a quantity surveyor did. 81Mr Kelly agreed that between 1986 and 1998 he would have been involved in giving advice to clients on hundreds, if not thousands, of occasions, including, in particular, advice in relation to the terms of contracts, the parties to contracts and whether the formalities with respect to concluding such contracts had been completed. 82At Resolve Engineering from and after 1998, his role required him to be responsible for preparing the scope of work and the contract between Resolve Engineering and AMP. He agreed that it was a very significant commercial contract. He also agreed that he worked in conjunction with solicitors then known as Mallesons in relation to that project over an extended period of time. 83On occasions Mr Kelly put forward proposals for the wording of contracts and submitted them to Mallesons. He agreed that he felt comfortable in doing such work and that he had sufficient experience and expertise to do so. He stated that his position in relation to the contract between Resolve and AMP was a very senior position. 84Between 2001 and 2004 David J Kelly and Associates obtained work whilst on particular banking quantity surveyor panels including, in particular, from St George. 85Mr Kelly was asked a number of questions in cross-examination as to his experience of having performed work following an appointment to a banking panel. In particular, he was taken to an agreement at the St George Bank being an agreement between the financier and the Bank. Part of his role as a quantity surveyor before 2005 was to review such agreements to ensure that the formalities between the relevant three parties - the bank, the builder and the borrower - had been completed. 86He was taken to an annexure to his affidavit of 6 July 2012, DKL-25, being a letter responding to a request expressing an interest in his company gaining an appointment to Suncorp's panel of quantity surveyors. In relation to the document which set out formal matters including scope of work parameters, Mr Kelly signed the acknowledgment contained within the documentation on 29 April 2005, thereby accepting Suncorp's offer to be appointed to its panel of quantity surveyors. 87He gave evidence of the process, based on his experience up to 2005, whereby a firm of quantity surveyors may obtain appointment to a panel with a bank, and said that it involved a number of steps. They included: (i) That the quantity surveyor would have to express an interest in being so appointed. (ii) That the bank would ordinarily request information from the quantity surveyor to form a view as to whether or not the quantity surveyor met the bank's criteria. (iii) The bank would then communicate in writing to the quantity surveyor if the bank was proposing that the quantity surveyor be appointed to the bank's panel. 88In relation to the third point, Mr Kelly maintained that it was not always the case that the bank would communicate in writing if it was proposing to appoint an entity as a quantity surveyor. Mr Kelly went further and suggested that it was in fact uncommon that the bank would do so in writing. 89Mr Kelly, however, agreed that it was typical in his experience that there would be an exchange of written communication about the payment terms of the quantity surveyor's fees. 90He further agreed it was common that there would be an exchange of written communication between the bank and the quantity surveyor with respect to the terms and conditions of the bank's panel. 91He also agreed that it was common, based on his experience, for there to be an exchange of written communication between the bank and the quantity surveyor dealing with matters concerning confidentiality and upon other terms such as the circumstances in which a quantity surveyor's services could be terminated, provisions dealing with conflicts of interest, and the nature and scope of the services to be provided by the quantity surveyor. 92It was put to Mr Kelly in cross-examination: "Q. Each of those matters I have just identified to you with which you have agreed are matters which would be the subject of a written communication between the bank and the quantity surveyor before the quantity surveyor was appointed to the bank's quantity surveying panel, don't you agree? A. No, all the items that you have mentioned are the items you would expect before an engagement. Q. Is your position that before there could be an engagement, each of those matters would need to be agreed in writing between the bank and the quantity surveyor? A. I would agree." (T 101:1-11) 93At the time Mr Kelly approached ANZ in 2005, he was clearly an experienced businessman. He was also familiar with the practice of quantity surveying. He had a clear understanding of matters concerning contract formation and in setting the terms and conditions of a contractual relationship. He himself had had experience in negotiating contracts to that end and experience in drafting contractual documents. 94As earlier discussed, Mr Kelly had in the course of his tertiary education undertaken a study of contractual principles. The details of his professional background and experience are set out in his affidavit sworn on 12 February 2012 at [7]-[19] (see also T 80-89).

[18]

The Timing of Mr Kelly's Commitment to Purchasing the North Sydney Property 109In considering the purchase of a commercial property such as the North Sydney office premises, it was Mr Kelly's evidence that he was very nervous because of his limited personal experience with commercial property and by reason of market fluctuations in commercial property which were more marked than residential property. Additionally, he said his company's practice was still growing and he did not want to over-commit. 110As of 9 February 2005, Mr Kelly said that he had agreed on a price for the purchase of the North Sydney property, but said that he had not made a decision to purchase it at that time: T 135:20-30. 111He stated that the price for the North Sydney property was agreed at $720,000 plus GST as at 9 February 2005: T 135:15-20. It was then put to him that he had made a decision to purchase the property by 9 February 2005, to which he responded "No": T 135:20-25. He said that he had agreed on the price but had not made a decision to purchase: T 135:25-26. 112Mr Kelly agreed that as at 7 February 2005 he was seeking from ANZ a loan or loans in the amount of $740,000 and that there was a proposal for refinancing the Suncorp loans for the Dural property and the Blackwall property: T 135:25-35. 113He was taken to a letter sent to him by Christine Lane from the agent, Burling Realty, in which Ms Lane congratulated him on proceeding with the purchase of the North Sydney property: T 136:1-5. Details of the sale were enclosed for his information: T 136:5-10. 114Three conditions for the purchase were noted by Ms Lane. First, that the contract would be in the terms of the proposed contract for the purchase, secondly that it would be subject to the existing lease, and thirdly it was to be subject to finance approval: T 136:10-25. 115It was put to him that he did not tell Ms Lane that the purchase of the North Sydney property was in any way linked to Gleeds Australia being appointed to the ANZ quantity surveyor panel. Mr Kelly stated: "She was the real estate agent. I didn't think it was necessary": T 136:21-24. 116He agreed from having reviewed the leasing file of Mr Duncan Scott that there was no document recording the fact that he was contemplating the purchase of the North Sydney property on a condition that Gleeds Australia was appointed to the ANZ quantity surveyor panel: T 137:1-17. 117Before 13 April 2005, Mr Kelly knew that he had a guaranteed tenant for a three year lease, being his company, Gleeds Australia: T 139:44-46. He also knew that Gleeds Australia was "good for any money under the lease because it had the shareholding support from Gleeds UK": T 139:45-50. He also knew that there was an option for renewal of the lease for a further three years: T 140:1-5.

[22]

Mr Robins (ANZ) 131Mr Kelly's evidence in his primary affidavit sworn 12 February 2012 at paragraph [34] was that before writing to ANZ he spoke to a Mr Tony Robins who was then in ANZ's Property and Construction Financing Department. He said the conversation was to the following effect: MR KELLY: "Could you please tell me how I can have my company, Gleeds Australia Pty Ltd, put onto the ANZ QS panel." MR ROBINS: "I suggest you write to me with your details." 132Mr Kelly said that he wrote a letter dated 8 March 2005, a copy of which was annexed as DJK-4 to his affidavit. The letter was written by Mr Kelly as Managing Director of his company, Gleeds Australia. It was marked to the attention of Mr Tony Robins. So far as is relevant, it recorded: "Dear Tony Re: QS Services Further to our conversation, we would like to apply to be included in your QS panel. As of 1 February 2005, Gleeds finalised the purchase of the QS practice previously known as the Conduit Group Quantity Surveyors or CQS. By way of introduction, we include the following brief information about our organisation ..." 133On the same date he wrote to Mr Robins, Mr Kelly also wrote to the financial institutions referred to in [123] above. Copies of letters written on that date were annexed to his affidavit sworn on 12 February 2012 (at pp 42 -55). 134Mr Kelly's evidence was that on or about 15 March 2005 he called Mr Robins in order to follow-up on the letter he said he had sent. He said the conversation was to the following effect: MR KELLY: "I'm calling to follow up on my letter. Is the ANZ going to put Gleeds on the ANZ QS panel?" MR ROBINS: "That would be unlikely as the ANZ has enough quantity surveyors on the panel". MR KELLY: Would it make any difference if I was an ANZ customer? MR ROBINS: "I don't know". 135In or about March 2005, Mr Kelly's evidence was that his personal home loan at that time was not with ANZ. He said the time was approaching when refinancing would become necessary, and he was considering whether or not to become a customer of ANZ.

[23]

Mr Asher (ANZ) 136It is part of Mr Kelly's case that ANZ's managers, including in particular Mr Asher, had authority to place his company on its panel of quantity surveyors. He said in evidence in relation to such "authority" that he relied, inter alia, on the relevant mortgage documents which contain provisions that define "an ANZ officer" (clause 1.1), Part 2 - "Background to the Mortgage", and clause 10.1 of the relevant mortgage. 137Mr Kelly alleged that the representation or promise which he says he relied upon and forms the basis for his claim in these proceedings was made by Mr Asher in his capacity as an ANZ officer and that he was entitled to rely upon such representation as: "... 'valuable consideration moving from ANZ' to him under Part 2 of the Memorandum of Mortgage and in consideration of which the First Plaintiff (and his wife) complied so far as they could with the provisions of the facility provided by the ANZ Bank to them": (Plaintiff's Outline of Submissions at [67]). 138Mr Kelly's evidence was that he received a telephone call from Mr Asher of the ANZ Hornsby Business Centre: Affidavit of Mr Kelly sworn 12 February 2012 at [42]. He did not specify the date of the call, but the context of his affidavit suggests that it occurred in April 2005. According to Mr Kelly it was to the following effect: MR ASHER: "I'm the ANZ's Relationship Manager and I'm calling from the ANZ Hornsby Business Centre. I have been given your details by Gerard Oldstein [sic] and I understand you are wanting to refinance and are also interested in a loan for a commercial property you are thinking of purchasing. I am calling to arrange for a valuer to assess the property." MR KELLY: "Well, I'm in the office most of the time, so you can come any time." MR ASHER: "So you are considering purchasing your office?" MR KELLY: "Yes, but I have reservations about purchasing it as I don't really understand commercial property. It would help a great deal if you could get my company, Gleeds Australia, onto the ANZ QS Panel. I have tried several times and I've also sent Gleeds' details in to the ANZ but I keep getting told the panel is full. I can't really understand why because the ANZ doesn't have anything to lose by putting Gleeds on the panel." MR ASHER: "The ANZ supports its business customers and I am sure we can get you on the panel, especially if you have commercial loans with us." 139Mr Kelly's evidence was that he had approximately two further conversations with Mr Asher. On those occasions he said he reiterated his concerns about commercial property and getting onto the ANZ panel. He said that he finally said to Mr Asher words to the effect: "The only reason I am going through with the purchase of the office is to get on your panel": (Affidavit of Mr Kelly sworn 12 February 2012 at [44]). 140Mr Kelly's evidence was that subsequently he completed the necessary documentation for the loan prepared by the broker Mr Gerald Olstein. 141Mr Kelly said that on or about 7 April 2005, he called Mr Asher and had a conversation to the following effect: MR KELLY: "Greg, I am thinking that I may not proceed with the purchase of the office. I am not convinced that the investment potential is as good as I first thought. Can you tell me, if I do go ahead with it, can you get us onto the QS panel at the ANZ? I have tried and keep getting told it is full" MR ASHER: "I am sure I can get you onto the panel if you are an ANZ customer, especially if you have commercial loans with us." MR KELLY: "Are you sure about this, because to be frank about it I will not continue with the purchase otherwise." MR ASHER: "I am sure, ANZ supports our business customers." 142At this point I note the following matters. First, the statements attributed to Mr Asher are all cast in the nature of a forecast or a prediction, for example, "... I am sure I can get you on the panel." Second, there is no reference in the discussion as to how or by what process appointment to ANZ's panel could be accomplished. Third, there is no reference to an unqualified undertaking by Mr Asher that he would see to it that an appointment of Mr Kelly or his company would be made by those whose responsibility it is to receive, asses and decide on appointments. 143I will refer below to Mr Asher's evidence in which he denies that a discussion along the above lines occurred. 144Mr Kelly said at this time ANZ had been running advertisements to the effect that it supported small business customers. 145In paragraph [49] of his primary affidavit, Mr Kelly stated that he sent a letter to Mr Asher via email on or about 12 April 2005 and annexed a copy of a document marked "DJK-5" as an annexure to his affidavit. It is that letter which is the subject of expert evidence on the basis of which ANZ has submitted that the document is a fabrication. Mr Asher has denied receiving DJK-5. As indicated above, DJK-5 is a separate and substantive issue for determination. 146DJK-5 was in the following terms: "12 April 2005 ANZ Attention: Mr Greg Asher Via email: gasher@anz.com.au Dear Greg [Description of property] ... [XXX] Arthur Street, North Sydney Further to our discussions I want to just confirm a couple of issues which would probably not be included in any mortgage documents. As I mentioned, with my interest in purchasing this property the investment qualities of this property are secondary. My primary interest is to get Gleeds Australia Pty Ltd on the ANZ's QS panel of your property finance group. You confirmed that if I proceeded in this purchase you will make sure we Gleeds are included on this list. Please advise if this is not the case as I will not proceed with this purchase if this is not the case. Yours faithfully David J Kelly" 147In paragraphs [50] and [51] of his primary affidavit, Mr Kelly stated: "50 Due to a computer crash in July 2007 I no longer have a record of the actual email transmission record as we were unable to recover the mail server data items, however I have a copy of the original letter from our archive back-up showing that the document was created on 12 April 2005. Annexed hereto and marked 'DJK-6' is a true copy of that document. 51 I also have the email address of Greg Asher retained in my address book. Annexed hereto and marked 'DJK-7' is a true copy of a download of my email address book." 148Mr Kelly set out details of the ANZ offer to provide commercial finance in the same affidavit: at [52]-[55]. 149His evidence was that in or about July 2005 he found out that his company had not been put on ANZ's panel and stated that he contacted the defendant on numerous occasions to follow up on the issue of the company being placed on the ANZ panel. ANZ disputes that evidence. 150Mr Kelly gave evidence of a meeting which he said took place in or about July 2005. He said he had found out that ANZ had not put Gleeds Australia on its panel, and that he called Tony Robins of the defendant's Property and Construction Finance Department. He set out the conversation he alleges took place with Mr Robins. He said that Mr Robins said that he, Mr Kelly, would have to speak to Mr Asher about being placed on the panel. 151Mr Kelly agreed in cross-examination, however, that he did not include in his affidavit reference to a conversation between himself and Mr Asher following the conversation with Mr Robins in July 2005: T 251:17-22. 152He agreed that if he had had such a conversation with Mr Asher he would have included it in his affidavit. It was put to him that it may be taken that, not having included it in his affidavit of 12 February 2012, that he did not in fact have a conversation with Mr Asher following the conversation with Mr Robins. He replied "Not that I could honestly recall": T 251:32. 153I note that in the same affidavit, at paragraph [64], he stated that following the conversation with Mr Robins he felt "stunned and immobilised". 154It was put in cross-examination: "Q. I suggest you were entirely taken aback by what you had just found out from Mr Robins, correct? A. Correct. Q. And it's the case, isn't it, that you took no step following any conversation with Mr Robins to raise at all with ANZ throughout 2005 any allegation that there had been some breach of promise by Mr Asher concerning the appointment of Gleeds Australia to ANZ's quantity surveying panel, correct? A. Correct. Q. And you can't offer any explanation, can you, why it is that if you had the conversation with Mr Robins at paragraph 63 in or about July 2005 why you didn't raise it with anyone from ANZ throughout the rest of 2005, correct. A. I'm sure I would have raised it but I don't have a file note or any record of it. Q. When you say 'I'm sure I would have', you have no recollection of doing so, do you? A. No. Q. And if it had happened you would have put it in your affidavit, wouldn't you? A If I could honestly recall it I would. Q. And the fact that you honestly can't recall it means you don't know whether it ever happened, correct? A. I don't. Q. Because the first time you make any suggestion of raising the allegation, the breach of promise with ANZ is over twelve months later, correct, in July 2006? A. Other than my discussion with Mr Robins, yes. Q. I'm talking about the discussions, Mr Kelly. A. Okay. Yes. Q. Why didn't you write to someone following your discussion with Mr Robins and raise it with ANZ, a serious matter that a promise had been broken to you by ANZ? A. As I have explained I took a commercial position on this to try and do it through relationships rather than go into writing. Q. But you agree, don't you, that doing it through relationships one would have to raise it with Mr Asher, correct? A. Yes. Q. And you didn't do so, did you? A. No." HIS HONOUR: "Q. Mr Kelly, what would you have to fear in July 2005 about raising this matter quite frankly and openly? A. Nothing, your Honour. I think it was just time probably got away by the time I got around to it Mr Asher had left ..." (T 252:16-T 253:18) 155Mr Kelly accepted that his relationship had been good with Mr Asher and that it would have been very easy for him to have raised it with him: T 253:34-36. 156Mr Asher left ANZ in September 2005. Mr Kelly agreed that he had not raised the matter with him at all before he left. 157When it was put to him that he did not have the conversation that he recorded in paragraph [63] of the last-mentioned affidavit with Mr Robins, he insisted that he had, and denied that he was lying about that: T 253:47-T 254:1-5. 158The fact that it was clearly open to Mr Kelly to have raised and pursued the promise he claimed Mr Asher had made, but that he did not take up and pursue the issue with anyone in ANZ after Mr Kelly found out he had not been appointed to the quantity surveyors panel (including Mr Asher), does not sit well with Mr Kelly's allegation that a promise had been made. Additionally, the basis for any expectation of being appointed to the ANZ panel in circumstances in which he had not made a detailed application setting out his qualifications and background experience and other material establishing compliance with the criteria for appointment to the ANZ panel are all matters requiring close examination of the evidence.

[24]

Inconsistencies in the Plaintiff's Evidence 159Mr Kelly's affidavit evidence as noted above, was that the critical promise was made by Mr Asher in April 2005. However, he also gave evidence that in the middle of February 2005 Mr Asher told him that he was on ANZ's quantity surveyors panel: T 117:50-T 118:4. 160The variation in his evidence on that aspect is a matter that calls into question the reliability of Mr Kelly's evidence, especially as it goes to a central issue in the proceedings. 161In cross-examination it was put to him: "Q. And nowhere in any of your affidavits have you ever alleged that you were told by Mr Asher in mid-February 2005 that Gleeds Australia would be appointed to the quantity surveying panel of ANZ after settlement of the North Sydney property, is there? A. I can't recall if it's specifically in my affidavits." (T 175:15-20). Q. And you proceeded to exchange a binding contract for the purchase of the North Sydney property without any indication from the bank that you had been appointed to the ANZ quantity surveying panel, correct? A. Yes." (T 167:35-38) 162He agreed in evidence that he had made no inquiry of Mr Peter Nass of ANZ who supervised appointments to the Bank's panel, nor of Mr Anthony Robins, at any time before 18 May 2005 to ascertain whether or not Gleeds Australia had been appointed to the Bank's panel: T 169:10-37. 163Whilst Mr Kelly's evidence moved between an account that he had been informed in mid-February 2005 that he had been placed on the Bank's quantity surveyor panel to one of having been told that he or his company would be placed on the panel if he entered into the mortgage or mortgages in question, he was strongly tested on the latter: "Q. Mr Kelly, as I understand what you are telling the Court this morning, on a couple of answers to my questions you have indicated that you had an expectation that Gleeds Australia would be appointed to the ANZ quantity surveying panel after settlement of the North Sydney property? A. That is correct. Q. And is that something you have never mentioned anywhere in any of your affidavits before? A. I can't recall. Q. Do you want a moment to think about it, Mr Kelly? It is something you would recall, wouldn't it, if you had included that information in any of your affidavits? A. I honestly can't recall at the moment. Q. It would have been an important matter to include in your affidavits if that is what you believed back in 2005, that after settlement of the North Sydney you were to be appointed to the ANZ quantity surveyor panel, wouldn't it? A. Yes, it would." (T 169:40-T 170:10) 164Mr Kelly received ANZ's "Letter of Offer" dated 13 April 2005 in respect of the mortgage over the North Sydney property. He said that he read the offer and understood it was made on the terms and conditions set out in the letter and in the attached "Small to Medium Enterprise Banking Finance Conditions of Use": T 145:25-31. 165He agreed that the maximum term of the business loan offer was six years, which was a period that was in accordance with the then current lease arrangements: T 145:43-50. 166Mr Kelly accepted that he, as "... an experienced businessman and familiar with many contracts ..." (T 149:2) would have read through the terms and conditions that applied to the ANZ business loan before he signed the Letter of Offer dated 13 April 2005: T 149:3-7. 167He understood that by signing the acceptance of the conditions offered, the agreement between him and ANZ concerning the loan for the North Sydney property were those set out and contained within the Letter of Offer: T 150:15-20. 168He accepted that nowhere in ANZ's Letter of Offer was there any mention of Gleeds Australia. Nor was there any mention of it in the Standard Conditions of Use. He agreed that from his experience and knowledge gained through his tertiary education he knew that, so far as ANZ was concerned, the agreement between it and him was wholly contained within the Letter of Offer of 13 April 2005. 169However, Mr Kelly asserted that he considered the (disputed) email that he said he sent on 12 April 2005 "to be an acknowledgment or a confirmation that ANZ would include Gleeds on their panel upon settlement of this facility": T 151:40-43. In that respect he was asked: HIS HONOUR: Q. How could it be an acknowledgement? KELLY: A. Sorry? Q. How could it be an acknowledgement? A. "Acknowledgement" is probably the wrong word. Q. "Confirmation" was the other word you used. A. "Confirmation", sorry, yes. Q. Confirmation by you? A. Confirmation by me to the discussions I had had with Mr Greg Asher. Q. And as to confirmation by ANZ? A. There was no confirmation by ANZ. But it was as a result of a series of conversations ranging - starting all the way back in February." (T 151:45 to T 152:10) 170In respect of each of the residential loans, he accepted that the Letter of Offer from ANZ included ANZ's specified Terms and Conditions. He agreed that he understood the agreement made was formed on those conditions and that there was no reference in them to his company being placed on the bank's panel: T 174:33-42. 171It was put to him that in respect of the residential investment loan, the Letter of Offer was dated 11 May 2005 and that he was aware at that time that he had not received any written indication from ANZ that Gleeds Australia had been appointed to the ANZ quantity surveyors panel. He said that was correct: T 173:48-T 174:2. 172It was put to him that in respect of each of the loans, the ANZ business loan, the home loan for the Dural property and the residential loan for the Blackwall property, that he accepted the Letter of Offer dated 19 April 2005 in respect of the first of those loans and the Letters of Offer dated 11 May 2005 in respect of the second two loans, and he understood that Gleeds Australia was not a party to those three contracts: T 174:5-30. 173Mr Kelly accepted that as at 18 May 2005, the date of the exchange of contracts for the North Sydney property, he knew that he had nothing in writing from ANZ to indicate that Gleeds Australia would be appointed to the ANZ quantity surveyors panel following settlement of that contract: T 174:33-42. 174It was put to him that as at 18 May 2005 he knew that he had no oral indication by anyone from ANZ that Gleeds Australia would be appointed to the ANZ quantity surveyors panel following settlement of the contract for the purchase of the North Sydney property. He said that was not the case. When asked who had given such an oral indication that the company would be appointed to the panel after settlement, he said "Greg Asher": T 174:44-T 175:5. 175He was asked: Q. "Are you saying in February 2005 Mr Asher told you specifically that you would be appointed to the ANZ -- A. He did." (T 175:8-10) 176In the Plaintiff's Outline of Submissions it is stated: "35. The First Plaintiff submits that Greg Asher represented that if the First Plaintiff proceeded with the commercial loan and transferred his residential loan and investment property loan to the ANZ Bank, the Second Plaintiff would be placed on the ANZ Bank's panel of quantity surveyors and his conversations with Greg Asher were noted in a contemporaneous notebook and followed up in an email sent that the First Plaintiff maintains was sent to Greg Asher by email on or about 12 April 2005." [footnote references to the evidence was given in support of those submissions.] 177In Mr Kelly's second-last affidavit filed late in the proceedings, being the affidavit sworn by him on 6 June 2013, there was annexed documents marked "DK-A" said to be true copies of the relevant pages from Mr Kelly's notebook. In paragraph [3], Mr Kelly referred to the fact that: "During the last week of May 2013, in the process of preparing for these proceedings, I located a notebook from 2005 in which I recorded, in the following sequence ..." [there is then reference to the fact of conversation between Mr Kelly and Mr Gerald Olstein on 10 January 2005, an undated conversation with Mr Asher on or about 13 January 2005 and an alleged conversation between Mr Kelly and Mr Asher on 3rd February 2005.] 178The authenticity of the entries in the notebook emerged during the oral evidence as a further strongly contested factual issue. ANZ has submitted that Mr Kelly concocted the Schedule of Events document (Exhibit 9) and then added entries to his 2005 notebook at pages 28 and 46: ANZ Final Submissions at [222]-[227]. 179In paragraph 9 of his affidavit sworn 6 June 2013, Mr Kelly referred to his earlier affidavit sworn on 12 February 2012, at paragraph [47], in which he referred to the conversation with Mr Asher as having occurred "on or about 7 April 2005". He stated: "...Now having located the notebook referred to above, I confirm there was more than one conversation in which Mr Asher confirmed the defendant would put my company on the QS panel, one of which having occurred on or about 13 January 2005 and another on 3 February 2005 ...". 180Whilst Mr Kelly's evidence, as noted above, was originally that the alleged promise by Mr Asher had been made "on or about 7 April 2005", in cross-examination, as also noted above, he said that Mr Asher had told him that he had in fact been appointed to the ANZ panel in the middle of February 2005: T 118:2-10; 118:4-50. This clearly represents a major inconsistency in Mr Kelly's evidence. Plainly his revised account as to having been informed of an appointment in February 2005 depends upon the assessment of his credibility as a witness. 181Mr Kelly said that in or about July 2005 he discovered that ANZ had not put his company on its quantity surveyors panel: Plaintiff's Outline of Submissions at [60]. 182He agreed that by 13 April 2005 he had not received any notification from ANZ concerning an appointment to its quantity surveyors panel. Mr Kelly maintained that he had "verbal confirmation" from Mr Asher: T 117:1-4. Mr Asher denied having given any such confirmation. 183Mr Kelly agreed that in 2005 Mr Peter Nass was the head of the ANZ panel. Below him was Mr Tony Robins. 184He agreed that Mr Asher was a "relationship manager" out at the Hornsby Business Centre and that Mr Nass worked out of premises in the city. It was put to him that he had never before 13 April 2005 communicated with Mr Nass. Mr Kelly accepted that was the case saying: "Not that I recall": T 117:15-25. 185He agreed that no one from Mr Nass' section within ANZ advised that Gleeds Australia had been appointed to ANZ's quantity surveyors panel: T 117:25-30. 186It was put to Mr Kelly that any decision to be made concerning the appointment to ANZ's quantity surveyors panel had to be made by Mr Nass. Mr Kelly responded "Not necessarily, no": T 117:30-35. He said that he understood that Mr Asher was in fact talking to Mr Nass: T 117:35-45. He stated that he could not recall whether he had stated that understanding in any of his affidavits: T 117:45-47. Mr Kelly was then asked: "Q. Now, when is it that Mr Asher, do you say, told you that you had been appointed to the ANZ quantity surveying panel? A. Mr Asher advised me that we were on the panel. Q. When did he do that, Mr Kelly? A. During the middle of February. Q. You are suggesting, are you, that Mr Asher had told you that you were on the panel in the middle of February before you had even sent the letter of 8 March 2005 to ANZ? A. Correct. Q. At 13 April 2005 you had no understanding of the criteria to be satisfied for the ANZ quantity surveyors panel, did you? A. I assumed the criteria was the same as other panels." 187It was put to Mr Kelly that at no time before 13 April 2005 did he ascertain the criteria that needed to be satisfied for appointment to the ANZ quantity surveyors panel. He then claimed that he had asked Mr Robins about the criteria. He agreed, however, that he had not made any reference to any such conversation about the criteria with Mr Robins in any of his affidavits: T 118:35-42. 188Mr Kelly maintained that not only had his appointment to the ANZ quantity surveyors panel been confirmed by Mr Asher in mid-February 2005, but that: "Just about every conversation I had with him I asked him about it and he confirmed each time": T 118:50-T 119:1. 189Mr Kelly subsequently stated this would have occurred on three or four occasions. He suggested this occurred in February and April 2005, but could not recall anything said on the matter in March 2005: T 119:10-15. 190A further inconsistency arose in Mr Kelly's evidence in cross-examination. He was taken to the letter he had written to ANZ on 8 March 2005 in which he stated "We would like to apply to be included in your QS panel". It was put that it would be "incredulous" that he would write that letter in those terms if he had already been told that he had been included on the ANZ quantity surveyors panel. Mr Kelly responded: "A. No, I had been advised by Mr Asher that I would be included if I took out the mortgage." (T 119:40-45) 191He agreed there was nothing in the letter he had written on 8 March 2005 that referred to anything about the need to take out a mortgage: T 119:45-50. It was put to him: Q. You don't in terms say that, 'Look, I have been appointed to the QS panel subject to taking out a mortgage, can you please confirm that'?, do you? A. No." (T 119:49-T 120:1) 192It was put to him that he understood that Mr Asher at that time would not have had any authority to appoint him, or his firm, to the quantity surveyors panel. Mr Kelly replied that he did not have such an understanding: T 120:3-6. 193In relation to his letter of 12 April 2005 to ANZ, he was asked: HIS HONOUR: Is there some reason why you didn't mention that fact in your letter of 8 March, that you had already been given something of a green light? A. Oversight, your Honour. I couldn't come up with any other reason other than oversight." (T 120:15-21) 194He agreed, when put to him by Mr McInerney of Senior Counsel: Q. You agree it would have been a very important matter to include in this letter? A. In hindsight, yes." (T 120:32-34) 195He added that in hindsight, "I should have included it.": T 120:39 196It was put to him that he did not include it because it had not happened. He disagreed and said that he had simply forgotten about it at the time: T 121:1-5. 197Mr Kelly's letter of 8 March 2005 is of course a complete contradiction of his evidence of having been told of his appointment to the panel in February 2005. In particular, as a contemporaneous record of events, it undermines his evidence in paragraph [7] of his affidavit sworn 6 June 2013 in which he said Mr Asher confirmed his company's appointment to the quantity surveyors panel on or about 13 January 2005 and on 3 February 2005.

[25]

The Absence of Written Complaint to ANZ 198Mr Kelly's case was initially built upon the proposition that ANZ had agreed in April 2005, and this was later changed to February 2005. On either basis, (if true) this would reasonably give rise to an anticipation that his company would then have the benefit of being on the Bank's panel. 199However, before 2011 Mr Kelly made no written inquiry about any such appointment, nor did he make any complaint in writing to ANZ about a failure to appoint his company to its quantity surveyors panel or its non-receipt of quantity surveying work. 200In determining whether or not a promise had been made by Mr Asher, post-contractual conduct (assuming of course that a contract was made) may play an important role in the determination. 201In cross-examination the matter was raised with Mr Kelly in these terms: "Q. Now, at no time following your acceptance to the loan terms and conditions proposed by ANZ did you make any complaint in writing to ANZ about any suggestion by you that you had an understanding that you were to be appointed to the ANZ QS panel until 13 April 2011; that's correct, isn't it? A. Nothing in writing, no." (T 152:14-19) 202The explanation proffered by Mr Kelly for not having written to ANZ in respect of the alleged promise which he maintains was made and broken by ANZ, was far from plausible. 203He said that he thought that it was better to deal with the promise allegedly made by Mr Asher by handling it in a "commercial" way or what he described as "managing the relationship" through verbal discussions. 204Prior to Mr Kelly's financial problems in respect of the ANZ loans (discussed below), there was nothing revealed in the evidence suggesting that there was any risk of Mr Kelly writing and inquiring about the appointment or failure to appoint his company to ANZ's quantity surveyors panel. He accepted that he could have made a written inquiry in polite and undemanding terms. However, he did not. 205Mr Kelly's account of having raised from time to time with nominated employees the fact that a promise had been made by Mr Asher encountered emphatic denials by each relevant employee. Their evidence is analysed below. The fact that Mr Kelly did not write to ANZ after its employees denied that a promise was made, as he claimed they did, in the absence of a cogent explanation by him, is capable of supporting the adverse inference that no promise as alleged was made. 206In relation to discussions that occurred at face-to-face meetings with Mr Kelly, relevant ANZ bank employees had the advantage of contemporaneous notes taken at the time of interviews with Mr Kelly. Mr Kelly, on the other hand, had no reliable contemporaneous notes as to precisely what he had said to ANZ employees and they to him. In those circumstances his credibility becomes an issue of central importance.

[28]

First Loan Variation: 2005 214A diary note dated 24 November 2005 (p 541 of MFI 4) indicates that Mr Kelly requested an increase in facilities of $30,000 in respect of the ANZ business loan which was granted: T 179:29-33. He agreed in cross-examination that he sought the increase to help clear a debt with the Australian Taxation Office: T 189-190. 215In relation to the increase in the facility limit, Mr Kelly received a letter from the Bank dated 24 November 2005. He said he read and understood that ANZ was making an offer set out in the letter on the conditions specified. He said he read the letter and the enclosed ANZ "Business Banking Finance Conditions of Use": T 180:35-40. 216He accepted that it contained the usual clause that the written agreement with him and the Bank contained the relevant terms and conditions "for the loan": T 180:40-47. 217It was put to him, and he agreed, that as at 24 November 2005 no one from ANZ had given him an indication, either in writing or orally, that Gleeds Australia had been appointed to the ANZ quantity surveyors panel: T 180:48-T 181:7. 218It was additionally put to him: "Q. And knowing that Gleeds Australia had not been appointed to the ANZ quantity surveying panel, you sought further finance from the ANZ to an amount of $30,000, didn't you? A. I did. Q. And you understood that by accepting this letter of offer and the attached ANZ Business Banking Finance Conditions of Use that you had agreed to vary the loan, the ANZ business loan, correct? A. I did." (T 181:14-22) 219Mr Kelly agreed that he accepted the offer on 22 December 2005 with full knowledge that Gleeds Australia had not been appointed to the ANZ quantity surveyor panel: T 181:24-32. 220Furthermore, he agreed when put to him that he made no complaint to anyone before accepting ANZ's the offer of 22 December 2005 about Gleeds Australia not having been appointed to the Bank's quantity surveyors panel. He agreed he decided to vary the business loan fully knowing that his company was not on the Bank's panel: T 181:30-43. 221He further agreed that he knew as at 24 November 2005 that he had initiated a new contractual relationship with ANZ which had nothing whatever to do with any requirement that Gleeds Australia would be appointed to the ANZ quantity surveyors panel: T 181:44-49.

[29]

Second Loan Variation: 2008 222In June 2008, the business loan was varied at Mr Kelly's request. He received a letter dated 10 June 2008 from ANZ concerning the variation. He agreed that it was to be on the conditions of the existing facilities, that is, as detailed in the original Letter of Offer of 13 April 2005 (see T 192:15-30). 223The Letter of Offer of 10 June 2008 which was accepted by Mr Kelly ("the variation letter") changed both the term of the loan and the interest rate: T 194:10-20. Mr Kelly agreed that the changes made by the variation were important changes. He also agreed that he knew that by agreeing to the variations, there was nothing within the contract by his acceptance of the Letter of Offer which made any reference to any asserted promise by Mr Asher to appoint Gleeds Australia to the Bank's panel: T 194:25-35. 224He agreed that at the time of signing the acceptance to vary the ANZ business loan on 11 June 2008, he did so knowing that as at that date Gleeds Australia had still not been appointed to the ANZ quantity surveyors panel: T 194:35-40. 225It was put to him: "Q. You proceeded to vary the business loan entirely disregarding any allegation that Gleeds Australia ought to have been appointed to the ANZ quantity surveying panel, correct? A. Correct." (T 194:42-45) 226It was also put to him: "Q. You didn't write to anyone at ANZ before signing this variation letter dated 10 June 2008 asserting an entitlement at that time to be appointed to the ANZ quantity surveying panel, did you? A. No." (T 194:45-50) 227He also agreed that the terms of the varied contract were contained within "the four corners of the letter of 10 June 2008" and the Bank's Conditions of Use and that he took no steps to ensure that it included a contractual term that Gleeds Australia be appointed to ANZ's quantity surveyors panel: T 195:10-20. 228It was then put to him: "Q. As at the time that you signed the acceptance to this variation of the ANZ business loan, you made a deliberate choice, didn't you, not to raise any complaint with ANZ about any of ANZ's prior conduct in its dealings with you, didn't you? A. Yes. Q. You were happy to proceed with the variation of loan because it suited your commercial requirements at the time to fix the interest rate, correct? A. Yes." (T 195:20-30) 229Mr Kelly, however, maintained that he had never "abandoned" reliance on Mr Asher's alleged statements to him. It was put to him that that was a lie. Mr Kelly rejected the proposition: T 195:35-40.

[32]

The Plaintiff's and Gleeds Australia's Cashflow Problems 236Whatever prospects Gleeds Australia had in 2005 of becoming a profitable company were diminishing by 2008. Mr Kelly agreed that in 2008 he was experiencing cashflow problems. On 30 July 2008 he sent Mr O'Neill of ANZ an email advising that he had closed down the Vietnam office (which was in fact closed by July 2008). Mr Kelly said that money was tight at that time as the Sydney office had been funding the Asian operations. 237He sent a further email to Mr O'Neill about that time. 238Mr Kelly said he was also personally experiencing some cashflow problems at that time: T 199:10-15. 239It was put to him that in neither of the emails sent to Mr O'Neill did he make any reference to the fact that Gleeds Australia was not on the ANZ quantity surveyors panel. He agreed that he had not made any reference to that matter: T 199:15-20. 240He accepted that at the time of the cashflow problems he did not say to Mr O'Neill as at mid-2008 "I want to be on the ANZ quantity surveying panel". He said he had not done so "via the emails": T 199:35-45. 241It was put to him that if it had been important to him, the prudent course would have been to write to Mr O'Neill and say "I haven't been appointed to the quantity surveying panel and I was promised that years ago". He was asked if he agreed with that and he said "Not necessarily": T 199:45-48. 242It was also put to him that it would have been at the same time relevant to have sought assistance from ANZ by the appointment to the quantity surveyors panel given the cashflow difficulties. He responded "If I had have been on the ANZ panel, it would have definitely helped": T 200:10. It was then put that that was the very reason why he would have said to ANZ "I'm not on the panel can I please be put on it? ...". He responded "Possibly". He said that he took the position that he wanted ANZ's help and "didn't want to upset the applecart" by raising at that point in time something which ANZ had promised and not done: T 200:14-16. 243He then stated that at that stage he thought it was more prudent not to put it in writing: T 200:25-27. 244In the course of cross-examination, it was put to Mr Kelly that if he had been aggrieved with ANZ for not putting him on its quantity surveyors panel, he could have taken his business elsewhere rather than continue to seek ANZ accommodation. 245When it was put to him that there was nothing to stop him in September 2008 from seeking another loan elsewhere, he said it was easier to consolidate the two: "Q. Is it your position it was easier to stay with a bank who you had regarded as breaching a very important promise made to you back in 2005 than to seek finance elsewhere? Is that correct? A. Yes, it is." (T 203:7-10) 246Mr Kelly accepted that he and Gleeds Australia were also experiencing cashflow difficulties in the early part of 2009. He was in communication with Mr O'Neill of ANZ at that time as to payments due. He, from time-to-time, replied by email to Mr O'Neill: T 204:35-50. It was put to him: "Q. And nowhere in any of the emails did you make any complaint about Gleeds Australia not being appointed to the quantity surveying panel, correct? A. No." (T 204:49-T 205:1) 247He subsequently agreed that he never followed up the matter in writing until 13 April 2011 (T 205:8-10), that is, approximately six years after the alleged promise was made. 248Mr Kelly agreed that the financial difficulties affecting Gleeds Australia continued through until the latter part of 2009, that Mr O'Neill was communicating with him regarding payments, and that in none of the emails did he make any complaint to Mr O'Neill alleging any breach of promise by ANZ: T 206:5-35. 249In the latter part of 2009, Gleeds UK and Mr Kelly agreed to go their separate ways. From that point, he was left without any financial support from Gleeds UK. 250He said that though cashflow problems were better for a time, they then worsened: T 207:5-15. 251By 30 September 2009, the difficulties had reached the point where there was a problem in meeting wages for staff: T 207:45-50. In 2010, Gleeds Australia was facing real financial difficulty. In an email of 15 February 2010 he advised Mr O'Neill that he had engaged a new accountant, Mr Pratt. 252Prior to February 2010, Mr Kelly said that he moved all his "business facilities" over to Westpac. However, he did not move the business loan, the residential investment loan or the home loan to Westpac: T 209:45-210:14. It was put to him in cross-examination: "Q. There was a golden opportunity there, wasn't there, to move away from the bank you say had broken a promise owed to you? A. Yes. Q. And you did nothing about it before March 2010 even though you had had a relationship with Westpac for some six to twelve months, correct? A. Yes. Q. Isn't it the true position, Mr Kelly, that from the time that you moved to Westpac with your business banking up to March 2010 you didn't have any complaint that ANZ had breached any promise to you, did you? A. I did, yes. Q. You are lying about that, aren't you, Mr Kelly? A. No, I'm not." (T 211:1-16) 253On 19 November 2009, Mr Kelly met Mr Wayne O'Neill of ANZ to discuss current arrears on the business loan and to update the Bank as to how the business was progressing. A copy of Mr O'Neill's Diary Note of that meeting is at p 1058 of Cross-Examination Bundle Vol. 4. 254It was put to Mr Kelly in cross-examination that there had been no discussion at that meeting with Mr O'Neill of any allegation that ANZ had made a promise involving an appointment to the ANZ quantity surveyors panel when Mr Kelly first took out the loan for the North Sydney property. Mr Kelly rejected the proposition: T 240:30-35. It was then put to him that he was lying, which he denied: T 240:34-42. 255Mr Kelly did not make a note of what was discussed at the meeting. He was asked how he could recall what he had discussed with Mr O'Neill. His answer was "because I haven't had that many face-to-face meetings with Mr O'Neill and I raised it on each occasion": T 240:46-47. 256Mr Kelly reaffirmed that he claimed to have only had a recollection upon the basis that he claimed it had been referred to at each meeting that he had with Mr O'Neill. He had no other basis to support his recollection: T 240:49-T 241:1-11. 257It is clear from Mr Kelly's own evidence that he had no independent recollection of having discussed the matter at the meeting of 19 November 2009. He referred to having had a meeting with Mr O'Neill in 2007 (the suggested date was 2 November 2007) and again at a meeting on 17 April 2008 at which he maintained that the subject of appointment to the Bank's quantity surveyors panel had been raised by him. 258Mr Kelly was taken to paragraph [69] of his primary affidavit in which he referred to the meeting on or about 2 November 2007 with Mr O'Neill. There, he set out the terms of a conversation which he said was to the following effect: KELLY: "Wayne, when I originally purchased this office I was promised by Greg Asher that he would get me on the ANZ QS panel. Can you please sort this out? O'NEILL: "I will see what I can do." 259In that same affidavit at paragraph [70], Mr Kelly said he had a meeting with Mr O'Neill on 17 April 2008. He set out the conversation in precisely the same words as the conversation he said had taken place on or about 2 November 2007. In cross-examination he conceded that he could not recall the exact words used at each meeting: "Q. Is it because, other than the diary note, the only recollection you have about what was discussed at these meetings is a belief on your part that you at each meeting you had with ANZ made some complaints about an allegation that ANZ had promised to you on the ANZ quantity surveyors panel years before? A. Correct." (T 248:1-6) 260Mr Kelly also gave evidence of a meeting that occurred on or about 11 July 2006 with Mr Tod Wills, ANZ's relationship manager. Mr Wills succeeded Mr Asher. 261In cross-examination he said he had no record of what was discussed with Mr Wills. He said the only document relating to it was a diary note which recorded the fact of the meeting but not the contents of the discussions: Exhibit DJK-13 at p 84 of Mr Kelly's affidavit sworn 12 February 2012. 262He also conceded that his recollection of what he said in paragraph [68] of that affidavit had been based upon "a belief on your part that at each meeting with the ANZ it made a complaint to ANZ that there had been some promise before you took out the loan for the North Sydney property about being put on the quantity surveying panel": T 250:10-20. 263He agreed that otherwise he had no independent recollection of what occurred at the meeting of 11 July 2006. 264Mr Kelly was taken to email correspondence and dealings with ANZ in relation to defaults and payment of interest in 2010. On 6 April 2010 the bank wrote to him requesting he immediately remedy the failure within five business days otherwise "an event of default will occur". He understood that that was a serious position which would enable the Bank to exercise its contractual rights in respect of the loans if "an event of default" occurred. ANZ referred him to the "ANZ Hardship Area" which gave him until 9 May 2010 to adjust arrears. 265Mr Kelly sent an email to Mr O'Neill stating that he was unable to make payments and that following a discussion with his accountant and Westpac, he was refinancing all three facilities: T 213-214. 266On 1 March 2010, he started the process of refinancing with Westpac: T 215:1-5. 267He, however, was unsuccessful in doing so. 268He received a letter from ANZ on 3 June 2010 requiring him to rectify his accounts within seven days. It was put to him: "Q. And even at this stage, 3 June 2010, you didn't make any written complaint to ANZ about any breach of promises, did you? A. No. Q. Can you offer any explanation why you didn't do so? A. I tried to do everything else at the time." (T 215:29-30) 269It was also put to Mr Kelly that he had heard the submission made by his solicitor at the outset of the hearing that he was asserting a claim for millions of dollars. It was then put to him that if he had thought he had had a claim worth millions of dollars against ANZ back on 3 June 2010 when he was experiencing real financial difficulty, that was the time that he would have asserted such a right. Mr Kelly responded: "In hindsight I probably should, but no, I didn't": T 216:2-18. 270Mr Kelly stated that he had engaged solicitors before June 2010 in relation to a significant issue concerning a project in Vietnam. He said that the dispute was worth one or two million US dollars. It was the subject of a commercial arbitration in Vietnam: T 216-217. It was put to him that at no time did he, before commencement of the present proceedings on 20 June 2011, ever tell his then solicitor, Ms Button, about any allegation that ANZ had breached a promise to him or his firm, Gleeds Australia, as to being appointed to the Bank's quantity surveyors panel. Mr Kelly responded: "I can't recall.": T 217:42, T 218:15-22. Mr Kelly said he was busy at that time, particularly with the Vietnam issue. It was put: "Q. So busy you never even mentioned a fundamental complaint you had about your bank in a claim which you said was worth millions of dollars? A. I don't recall mentioning it to her. Q. You never mentioned it to Ms Button because it is fanciful, isn't it, Mr Kelly? A. No, it is not." (T 218:35-40)

[33]

The Meeting of 5 August 2010 271A meeting had taken place between Mr Kelly, his new accountant Mr Ian Pratt, and Mr Kostov of ANZ on 5 August 2010. He said that Mr Kostov had an assistant in attendance. There is a live dispute between the parties as to whether anything was said at this meeting concerning the alleged promise made by Mr Asher in April 2005. 272Mr Kelly's evidence was that this meeting lasted approximately three-quarters of an hour. He said that the topic of conversation was the then current situation of the mortgages and that Mr Pratt had made a request to the bank "... to put us on the panel again": T 234:27. It was put to Mr Kelly in cross-examination: "Q. And there was no discussion at this meeting, was there, about any alleged promise made by Mr Asher back in 2005, was there? A. It was a comment made by me that it was a promise made by the bank. I didn't specifically mention Mr Asher. Q. So you didn't refer to Mr Asher at all, is that right? A. That is correct. Q. And why was it that you didn't refer to Mr Asher? A. The discussion was that there was a promise made by ANZ to put us on the panel prior to me taking out the mortgage for the commercial property. I didn't see any reason to mention a specific name. Q. The position is, isn't it, that as at the meeting that occurred on 5 August 2010 you didn't recall any promise having been made to you by Mr Asher, did you? A. I did recall the promise being made." (T 234:32-50) 273Mr Kelly said in cross-examination that he did not make a note of the meeting with Mr Kostov, nor, to his knowledge, did Mr Pratt: T 235:10-20. 274It was put to Mr Kelly that he had never raised a complaint in writing with ANZ before commencing proceedings. Mr Kelly replied "I believe I emailed Mr Kostov". However, he subsequently accepted that he had emailed Mr Kostov on or about 10 July 2011. 275A copy of Mr Kelly's email dated 13 April 2011 was annexed to his affidavit sworn 12 February 2012. 276Mr Kelly accepted that he did not make any reference in that email alleging that at the meeting on 5 August 2010 ANZ had made a promise to him before entering into the mortgage for the North Sydney property that he would be appointed to the quantity surveyors panel. 277In addition, Mr Kelly accepted that he did not, at the time of writing to Mr Kostov on 13 April 2011, suggest that he, Mr Kelly, had sent an email to anyone at ANZ concerning any such promise: T 236:45-50. 278Mr Kelly was then asked: "Q. And you didn't suggest in this letter that the person to whom you had sent any email was Mr Asher, did you? A. No, I didn't. Q. And at the time that you sent Mr Kostov this letter, best you could recall to that date, that you had some discussion with Mr Wills, correct? A. Correct. Q. And Mr Wills, he only became your relationship manager in September 2005, didn't he? A. Correct." (T 236:50-T 237:9) 279The only written record of the discussion that took place on 5 August 2010 was a memorandum signed by both Mr Kostov as manager, and another ANZ employee, Mr Shah. A copy of the memorandum or diary note was included in Court Book Vol. 4 at p 1148. There is no reference in it to a complaint concerning a promise having been made to Mr Kelly. 280When it was put to Mr Kelly in cross-examination that he had made no complaint at the meeting of 5 August 2010 of a promise having been made some years earlier concerning an appointment to the ANZ quantity surveyors panel, Mr Kelly responded, "That is incorrect": T 237:38. It was put: "Q. You are lying about that, aren't you, Mr Kelly? A. No, I'm not." (T 237:40-41)

[36]

Preliminary Matters 282As outlined earlier, the central premise of the plaintiff's case is that the defendant, ANZ, by its relationship manager, Mr Greg Asher, made a verbal promise to Mr Kelly: Statement of Claim at [7] and [8]. The plaintiff's case relies upon the making of the alleged "promise" as a collateral contract, or as constituting misleading and deceptive conduct. 283Mr Kelly's case depends essentially upon his credibility as to his contention that Mr Asher, who he had not previously known, made a verbal promise to him which was binding upon ANZ. A number of matters arise in determining whether any such promise was made. 284As I have earlier noted, Mr Kelly's evidence varied between (a) a statement by Mr Asher to him that he and/or his company, Gleeds Australia, had in February 2005 been appointed to the ANZ quantity surveyors panel as a result of Mr Asher's intervention, to (b) a verbal promise to that effect made by Mr Asher in April 2005, and that on the strength of such a promise Mr Kelly proceeded with the loan transaction with ANZ on the basis that he and/or Gleeds Australia would be placed on the ANZ quantity surveyors panel. 285The promise, as earlier noted, was not referred to in any contemporaneous writing save for a purported email allegedly sent by Mr Kelly on 5 April 2005 to Mr Asher (DJK-5) confirming a discussion with Mr Asher. ANZ claims that the purported email is a fabrication. 286As discussed above, Mr Kelly became aware by July 2005 that ANZ had not in fact placed him or his company on ANZ's quantity surveyors panel. However, he failed to make any complaint in writing about that from 2005 up to May 2011. That failure may constitute some, albeit limited, evidence against the promise alleged having been made. 287Mr Kelly, from his past business experience, understood that the practice of financial institutions, generally speaking, was to require an applicant who sought inclusion on a bank's quantity surveyors panel to submit details by way of an application setting out details of his qualifications, experience and so forth. He had not been requested by ANZ to submit any information at all regarding himself or Gleeds Australia. 288There is an inherent improbability in a large financial institution agreeing to appoint someone to its quantity surveyors panel, as it were, sight unseen and without proper verification confirming his or her qualifications and capacity. This, however, is a premise underlying Mr Kelly's case. On the evidence, that premise is a doubtful one. 289Further, any financial prospect resulting from the inclusion of a person on ANZ's quantity surveyors panel was a contingent one and was never a certain prospect in terms of returning a specific level of remuneration. Mr Kelly's evidence in re-examination was not that being included on the ANZ panel would produce a specific financial result but, as he put it, "hopefully [it] would be an increase in income". In other words, even if a promise as alleged was made, there is a real question as to what reliance could have been placed upon it in deciding on the purchase and loan concerning the North Sydney property. 290ANZ relied upon other circumstances that influenced Mr Kelly's decision to purchase the North Sydney property. These included the fact that Gleeds Australia would be receiving financial support from the directors of Gleeds UK, that there would be a substantial rental return from the property, and further, that it would also provide a negative gearing advantage to Mr Kelly. 291These, ANZ submitted, were positive reasons for Mr Kelly's decision to proceed with the purchase.

[37]

DJK-5 292There is a significant issue as to the authenticity of the email allegedly sent on 12 April 2005 by Mr Kelly concerning the promise which Mr Kelly alleges was made by Mr Asher prior to the loan facilities being established. 293The sole written communication relied upon by Mr Kelly in relation to the appointment of Gleeds Australia or himself to the ANZ's quantity surveyors panel, was DJK-5 which is in the following terms: "Further to our discussions I want to just confirm a couple of issues which would probably not be included in any mortgage documents. As I mentioned, with my interest in purchasing this property the investment qualities of this property are secondary. My primary interest is to get Gleeds Australia Pty Ltd on the ANZ's QS panel of your property finance group. You confirmed that if I proceeded in this purchase you will make sure we Gleeds are included on this list. Please advise if this is not the case as I will not proceed with this purchase if this is not the case." (Court Book Vol 1 at p 56) [DJK quoted in full at [146] above] 294DJK-5 was printed on the letterhead "David J Kelly & Associates". A Dural address appeared in the top right-hand corner of the document along with a post office box at Pennant Hills. In addition, a contact phone number, fax number and an email address were included along with an ABN reference. 295Mr Kelly said that that document was the PDF which he first located on or about 26 May 2011: T 258:35-36. 296Mr Kelly agreed that he "found" the letter of 12 April 2005 after he had sent his letter to Mr Kostov dated 13 April 2011: T 226:35-45. 297He agreed that the only time he ever sent a copy of what he said he had sent by email to Mr Asher in April 2005, was the copy forwarded to Mr Kostov on 10 July 2011 after he had commenced the present proceedings: T 227:10-30. He was asked: "Q. Did you ever write a letter of demand to the bank setting out any complaint that you had about the bank's conduct-- A. No. Q. --before you commenced proceedings on 20 June 2011? A. No. Q. Was there any reason for that? A. No. Q. Mr Kostov responded to your email on 11 July 2011, didn't he. A. Yes." (T 227:27-38) 298The email address to which it was to be sent to Mr Asher was recorded in DJK-5 as "Via email: gasher@anz.com.au". As put to Mr Kelly in cross-examination, that was not the email address for Mr Asher: "Q. And you agree, don't you, because you know it to be the case, that that is not the email address for Mr Asher, correct? A. Correct. Q. It's never been the email address for Mr Asher, has it? A. No, it hasn't been. Q. This email address on this PDF at DJK-5 is incorrect in two respects, isn't it? Do you agree? Do you recall? A. Not specifically, but it is incorrect. Q. Well, tell me what's incorrect about it, Mr Kelly. A. I believe this email was 'asherg' or something like that. Q. When did you first recall that Mr Asher's email address was 'asherg' or something like that? A. I can't recall now." Q. Was it some time after the commencement of these proceedings"? A. No, it wouldn't have been because he's on my mailing - my mailbook. Q. So that's the explanation you offer? You say 'Oh, well, it wouldn't have been because he's on my mailbook', is that correct? A. When I sent an email I use auto predicting text, and as soon as I put in 'Greg A' his email address would come up. Q. Now, you don't have a recollection of that, do you? A. I know that when I send an email I will use autocorrecting to start with. Q. You are giving evidence about what you are asserting your practice was? A. Yes. Q. At some time earlier, correct? A. Yes, correct." (T 259:1-37) 299Mr Kelly agreed in cross-examination that Mr Asher's email address in 2005 after the reference a-s-h-e-r-g@, was "ANZ.com", not "ANZ.com.au": T 260:30-40. 300An email written by Mr Kelly to Mr Kostov on Sunday, 10 July 2011, appears at Cross-Examination Bundle Vol 4 at p 1193. It referred to the purported email of 12 April 2005. The inference in the email of 10 July 2011 was that this was a genuine record. It is in the following terms: "Subject: ANZ QS Panel Attachments: Letter Head [XXX] Arthur St ANZ.pdf George Further to our phone call on Friday, you seemed to suggest that you may be able to get us onto the ANZ QS panel. Sorry if I was a little dismissive of it, I have had so many people in ANZ promise to do it over the years that I have become a little sceptical. As you can see from the letter attached, the reason I purchased Arthur St was solely to get on this panel. I can specifically point to 4 projects where one client has put us forward over the last 18 months and been told on each occasion we are not on the panel. This alone has cost us about $200k in fees. The ANZ manager who runs the panel is Peter Nass. If you could get us on the list at least we can go forward. Regards David J Kelly Managing Director Lucrum Consulting Pty Ltd" 301The error in the email address in the document dated 12 April 2005 marked for the attention of Mr Asher and signed by Mr Kelly was not identified until October 2011. 302On 25 July 2011, the solicitors for ANZ wrote to the solicitors then acting for Mr Kelly seeking particulars of a number of matters concerning the email of 12 April 2005 allegedly sent to Mr Asher (Cross-Examination Bundle, Vol 4 at p 1199A). 303On 19 September 2011, Ms Jane Button, the solicitor then acting for Mr Kelly, replied to Gadens Lawyers providing particulars in response to their further letter of 15 September 2011. The particulars included reference to the letter sent by email to the email address gasher@anz.com.au (see Cross-Examination Bundle, Vol 4 at p1236). 304On 7 October 2011, Gadens Lawyers wrote to the liquidator of the plaintiff's company and sent a copy to Ms Button. (A copy of the letter is included in the Cross-Examination Bundle Vol 4 commencing at p 1229.) Reference was made to the fact that the plaintiffs had failed to provide proof of the alleged email being sent. The only material that had been provided was a copy of the letter on the company's letterhead dated 12 April 2005. Gadens wrote that a computer screen dump did not establish that the email had been sent. It was also observed that the address stated on the email addressed to Greg Asher was incorrect. Further searches of ANZ's hard copy and electronic records had indicated that the "Alleged Email" had not been received: at p 1230. 305Annexure DJK-7 to Mr Kelly's affidavit of 12 February 2012 records the correct email address for Mr Asher. 306In cross-examination it was put to Mr Kelly that the evidence in paragraph [51] (and by inference the information contained in "DJK-7") had been put forward to suggest that Mr Kelly had had Mr Asher's correct email address in his address book for some period of time before 2011. Mr Kelly agreed: T 265:35-41. 307The following questions and answers arose in Mr Kelly's cross-examination: "Q. And you sent this email to your solicitor Jane Button on 17 October 2011, 10 days or so after the Gadens letter of 7 October 2011 which I showed to you at page 1225 of MFI 7? A. Correct. Q. And you provided this email to Ms Button, didn't you, to respond to the allegation made by Gadens denying that the PDF DJK5 had been sent, do you agree? A. Yes. Q. And to put forward something on your part to indicate that notwithstanding that the PDF DJK5 contains within it an incorrect email address for Mr Asher, that some explanation that you could have sent the PDF to his correct email address, is that right? A. Yes. Q. What I suggest to you Mr Kelly is that it was only after the Gadens letter of 7 October 2011 that you created on your Apple tablet the address book referring to Mr Asher with the correct email address asherg@anz.com, do you agree? A. No I don't. Q. If you look at paragraph 49 of your affidavit of 12 February 2012, do you see paragraph 51 of your affidavit? A. Yes. Q. You state there "I also have the email address of Greg Asher retained in my address book"? A. Correct. Q. You have put forward the evidence in paragraph 51 to suggest that you had Mr Asher's correct email address in your address book for some period of time before 2011, correct? A. Correct. Q. And that's not true, is it? A. It is, it is true. Q. You have given false evidence in paragraph 51 of your affidavit, haven't you, Mr Kelly? A. No, I haven't. Q. You only gave any consideration to the email address for Mr Asher concerning pdf DJK-5 after the Gadens letter of 7 October 2011, correct? A. Sorry can you repeat the question. Q. You only gave consideration to what was the correct email address for Mr Asher after receipt of the Gadens letter of 7 October 2011? A. Correct. Q. And it was only when it was drawn to your attention by Gadens through that letter that the PDF was addressed to the incorrect email address for Mr Asher that you have sought to put forward an allegation that you had had Mr Asher's correct email address the whole time throughout the period from 12 April 2005 through to and including 12 February 2012, correct? A. By that time I had actually received emails from him so I had his email address. Q. You can't offer any explanation, can you, why it is that the incorrect email address for Mr Asher appears on the PDF DJK5 can you? A. Because I was going from memory at the time and I use predictive text when I type out email addresses and actually sent emails. Q. Do you say you were using your recollection at the time, is that what you said? A. His email address I typed from memory and since I don't type his email address every time I type it, I use predictive text, and I got it wrong on the letter. Q. You got it wrong in the PDF DJK5 because that document was not in existence in 2005 and wasn't created by you until on or after the 26 May 2011 and on or before 29 May 2011, correct? A. That's incorrect." (T 265:7-266:30) 308Whilst Mr Kelly maintained that he had a recollection of sending the email, DJK-5, to Mr Asher, it was put to him that his evidence in that respect was a lie: T 267:15-20. It was put to him that he had been fabricating evidence, which was denied by Mr Kelly: T 267:20-25. 309In paragraph [50] of his affidavit sworn 12 February 2012, he stated: "Due to a computer crash in July 2007 I no longer have a record of the actual email transmission record as we were unable to recover the mail server data items, however I have a copy of the original letter from our archive back-up showing that the document was created on 12 April 2005. Annexed hereto and marked 'DJK-6' is a true copy of that document." 310Mr Kelly was taken to annexure DJK-6 to his affidavit of 12 February 2012 which was a copy of a screen shot entitled "letterhead [XXX] Arthur Street, ANZ properties". It records that the document was created, "Thursday, 26 May 2011 at 9.41.51am". Below that entry against the word "modified" appears: "Tuesday, 12 April 2005 11.22.22pm". Underneath that entry is a further entry: "Accessed: Sunday, 29 May 2011, 11.34.58pm". 311Between 26 and 29 May 2011, (that is, a few days after ANZ's letter of 24 May 2011) Mr Kelly undertook what he referred to as his "experiment" on his computer: T 226:1-10. This action was taken by him within a couple of day of receiving ANZ's letter saying that it was going to enforce its security. It plays a significant part in relation to the email Mr Kelly said he sent on 12 April 2005 to Mr Asher as to Mr Kelly being placed on ANZ's quantity surveyor panel. It is the subject of expert evidence referred to below. 312As to Mr Kelly's testing or experimentation on his computer in that period, his evidence was that the first person he told about it was his solicitor, Ms Button. He accepted that it was likely that he told her some time after his affidavit of 12 February 2012 was sworn: T 269:20-35. 313It was put to Mr Kelly that it was likely the first time he informed Ms Button about DJK-5 did not occur until after Gadens first wrote to Ms Button requesting the opportunity to inspect Mr Kelly's computer and other media on which the PDF DJK-5 had been kept or sent. Mr Kelly denied this was the case, and he said that he thought he had raised it with Ms Button beforehand: T 269. 314The expert evidence concerning PDF DJK-5 is discussed below.

[38]

Events Concerning the Creation of PDF DJK-5 315Relevant events concerning the creation of PDF DJK-5 are summarised below: (i) Between 26 May 2011 and 29 May 2011 Mr Kelly, on his account, first located the PDF DJK-5. (ii) Mr Kelly received a letter from ANZ on 24 May 2011 advising that ANZ would seek to enforce the securities: T 274:25-32. (iii) He located PDF DJK-5 on 26 May 2011: T275:35-40. This was the first time he had been able to locate it: T 275:50-276:1. (iv) After locating the copy of the email dated 12 April 2005, he was advised that the dates contained within the file properties may be questioned: T 276:1-6. (v) He accordingly wanted to make sure that he understood the limitations of changing the clock in case he was questioned on it: T 275:5-10. (vi) He then undertook some testing or experimentation: T 273:25-30. (vii) In paragraph [21] of his affidavit sworn 12 September 2012, he said that on or about 26 May 2011 (two days after ANZ's abovementioned letter) he opened up his old HP hard disk and deleted everything on it so he could quarantine the 2005 backup files: T 274:45-50. He said that he did this in order to clean it up: T 275:1-5 (the reference to the HP hard drive was a reference to the HP pocket drive): T 275-6. (viii) In the evening of 26 May 2011 he decided (he stated much to his regret now) to experiment with the CMOS date on his computer: T 276:20-25. (ix) He said that he changed the clock to 12 April 2005, 11.10pm: T 278:10-15. (x) Mr Kelly said he then undertook some experimentation by loading a new MS Word Document and typed some random text. Hence, the "experiment" involved the following: (a) He changed the clock back to match the approximate time for what he said were the properties for the PDF DJK-5. (b) He then opened a new Word document. (c) He then proceeded to type in a random text: T 278:40-50. (d) He then saved the document as "Letterhead [XXX] Arthur Street ANZ" to match the original letter to his desktop - he said he saved the letters as a PDF. (xi) Mr Kelly said that he printed to PDF using Primo PDF: T 279:5-10. (xii) On 29 May 2011 at 11.49pm he sent the email to Mr Pratt: T 282:1-5. The first person PDF DJK-5 was sent to was Mr Pratt: T 282:10-15. 316A number of propositions as formulated by ANZ's expert Mr Ghosh (see discussion of his evidence below) were put to Mr Kelly. The following sets out the questions and answers in that respect: "Q. What I am suggesting to you Mr Kelly is that on the 26 May 2011 the system clock on the Sony Vaio laptop was changed to show 12 April 2005, the HP pocket drive was connected to the Sony Vaio laptop. The Microsoft word document letterhead.doc already stored on the HP pocket drive was accessed and either copied, renamed or saved as letterhead [XXX] Arthur Street ANZ.doc. The document was edited so it contains the text now shown in letterhead [XXX] Arthur Street ANZ.doc and the result is a document on the HP pocket drive whose last access file created and last written dates all display 12 April 2005. The document was printed as a PDF using the Primo PDF software and in the process a Primo PDF conversion log was created on the Sony Vaio laptop showing the 12 April 2005 date and the resulting pdf ie letterhead [XXX] Arthur Street ANZ.pdf would have last accessed, file created and last written dates all displaying 12 April 2005. The system clock of the Sony Vaio laptop was changed back to the real date i.e. 26 May 2011 and the pdf was copied to the Sony Vaio laptop. This resulted in the following. File created date of the version of the pdf on the Sony Vaio laptop was set to 26 May 2011. The last access date for the version of the PDF in the HP pocket drive was up dated to 26 May 2011. Letterhead [XXX] Arthur Street ANZ.doc and letterhead [XXX] Arthur Street ANZ.pdf on the HP pocket drive were deleted. On 29 May 2011 the version of the PDF now on the Sony Vaio laptop was accessed resulting in the last access date being updated to 29 May 2011 and at some time after 26 May 2011 the free space on the Sony Vaio laptop was wiped removing what should have been apparent evidence of the above steps, do you understand? A. I understand. Q. I am suggesting to you that you either took the steps I have just set out to you as summarised in Mr Ghosh's conclusions paragraph 92 of his report on 20 February 2013, do you understand that? A. I understand. Q. Do you agree or disagree? A. I disagree. Q. Do you understand I am suggesting to you that you fabricated the document, the pdf DJK5 in your affidavit? A. I understand. Q. And do you reject that proposition? A. I reject that proposition. Q. You understand also, don't you, that I am suggesting to you that some time on or after 26 May 2011 you have used software to undertake a wiping exercise of data contained on the Sony Vaio laptop, do you understand that? A. Yes. Q. And you have done so to cover your tracks? A. I reject the proposition.

[40]

Analysis of Mr Ghosh's Evidence 323Mr Ghosh received instructions from Gadens on 20 August 2012. He interpreted them as requiring an examination of certain computers and hard disk drives and form an opinion on: (a) Whether or not a particular document (the PDF dated 12 April 2005) was created on 12 April 2005; and (b) Whether the PDF was emailed to Greg Asher of the ANZ or any other email address. 324In summary, his investigations and analysis led him to conclude that the PDF was not created on 12 April 2005, but that it was created some years later, as discussed below. 325Mr Ghosh had in his instructions a copy of Mr Kelly's affidavit sworn on 12 February 2012 and a copy of PDF DJK-5. 326Mr Ghosh set out in his affidavit of 5 June 2013 at paragraph [5], what he understood to be Mr Kelly's "case theory": "(a) In Kelly's Affidavit, Mr Kelly alleges that that he created the PDF on 12 April 2005 on a different computer, which was subsequently backed up onto an external hard disk known as 'Imation hard disk' in about July 2005, and then copied from that Imation hard disk onto another external hard disk known as 'HP Hard Disk' on or about 26 May 2011. (b) In this regard, Mr Kelly, amongst other things, alleges that: (i) In 2005, Mr Kelly had a Hewlett Packard Pavilion laptop and also an external Imation brand external hard disk (Kelly's Affidavit, paras 3 to 6). (ii) In approximately July 2005, Mr Kelly: (A) transferred all his data to an Imation external hard disk (Kelly's Affidavit, para 6). Mr Kelly alleges he 'used this Imation hard disk as my general backup over the next few years'. (B) replaced the HP Pavilion laptop with a 'new laptop' (Kelly's Affidavit, para 10). (C) 'retired the HP Pavilion Laptop': (Kelly's Affidavit para 7) and 'put the HP Pavilion Laptop out for council collection' (Kelly's Affidavit, para 9). (iii) In or about 2009, Mr Kelly replaced the 'new laptop' with the Sony Vaio Laptop that he has today (Kelly's Affidavit, para 10 which states he replaced that one in about 2009 with a Sony Vaio Laptop which is the one I have today'). (iv) In 2011: (A) Kelly was 'aware that statute of limitations was approaching for [him] to take action against ANZ for their breach of promise in or about April 2005' (Kelly's Affidavit, para 19); (B) Kelly then 'searched the several external hard disks [he] owned and found the file on the Imation hard disk previously mentioned'. Mr Kelly alleges he 'initially had some trouble viewing this hard disk as [he] was getting hard disk error messages' (Kelly's Affidavit, para 20). (v) On or about 26 May 2011, Kelly: (A) 'opened [his] old HP Hard disk and deleted everything on it so [he] could quarantine the 2005 back up files' (Kelly's Affidavit, para 21). (B) 'copied the backup of [his] old laptop onto the HP Hard disk so [he] had an isolated copy of them' (Kelly's Affidavit, para 22). (vi) In the evening of 29 May 2011 Mr Kelly "decided (much to [his] regret now) to experiment with the CMOS date on [his] computer' (Kelly's Affidavit, para 29). Mr Kelly alleges he did so as follows: (A) Kelly reset the 'date to 12 April 2005 and the time to approximately 11:10PM to approximately match the modified timing of properties of the letter of 12 April 2005' (Kelly's Affidavit, para 27). (B) Kelly then loaded 'a new MS Word document and typed some random text' (Kelly's Affidavit, para 28). (C) Kelly then 'saved the document as 'Letter Head [XXX] Arthur St ANZ' to match the original letter, to [his] desktop (Kelly's Affidavit, para 29). (D) Kelly then 'printed to PDF using PrimoPDF' (Kelly's Affidavit, para 29)." 327Mr Ghosh attended the offices of Lucrum Consulting, Arthur Street, on 21 August 2012. He there met Mr Kelly and Mr Kelly's computer expert, Mr Clinton Towers. Under Mr Towers' supervision, Mr Ghosh carried out an examination of a Sony Vaio laptop computer, which was the property of Mr Kelly or that of his company. He, for identification purpose, referred to it as "ANZ-002". He made an evidence copy of the laptop hard disk drive. 328Attached to the laptop ANZ-002, was a HP Pocket Drive brand external hard disk drive which Mr Ghosh referred to as "ANZ-003". 329Mr Ghosh noted that ANZ-002 had two logical disk drives which he called HD1 P1 and HD1 P2. No files were recovered from HD1 P1. 330Mr Ghosh undertook a standard data recovery on ANZ-003. 331He located two identical versions of the PDF named "Letter Head [XXX] Arthur St ANZ.pdf." 332Internal metadata indicated that the PDF was created using PrimoPDF software. That was a relevant fact concerning the date of creation of the PDF, as the actual date upon which that software was installed acts as a relevant marker in time. 333Mr Ghosh noted that the PrimoPDF software was manufactured on 1 August 2007. Significantly, it followed that the PDF could not have been created prior to that date. 334Mr Ghosh identified a number of "indicators" that suggest that the software was installed onto the laptop ANZ-002 on 19 April 2010. They include the following matters: "a. The PrimoPDF directory was created on 20 April 2010 and last written on 19 April 2010; b. The PrimoPDF4 directory was created on 20 April 2010 and last written on 19 April 2010; c. The 'uninstall.exe' file was created on 20 April 2010 and last written on 19 April 2010; d. The 'primomonnt.dll' file was created on 20 April 2010 and last written on 19 April 2010." (Mr Ghosh's report of 4 September 2012 at [60]) 335Mr Ghosh was unable to locate a Microsoft Word Document which was the original file, converted to become the PDF: Report of 4 September 2012 at [64]. 336In his report of 7 September 2012, Mr Ghosh stated he had undertaken further examinations, the results of which were set out in his report. He stated he had been able to narrow the findings in his previous report. In summary, his finding was that the PDF had been created after 20 April 2010: at [9]. 337It followed, Mr Ghosh stated, that the PDF could not have been emailed on or about 12 April 2005: at [10]. 338Mr Ghosh set out the reasons for his findings and conclusions. 339He stated that the laptop ran the Microsoft Windows operating system (installed in HD1P2). He expressed the opinion that the HD1P2 was created on 20 April 2010, the date the Microsoft Windows operating system was installed. 340His opinion in that respect was based upon the following findings and observations: "a. The Master File Table (ie $MFT) shows a creation date of 20 April 2010; b. The following system files are created when Microsoft Windows is installed and they each show a creation date of 20 April 2010: $AttribDef, $BadClus; $Bitmap, $Boot, $Logfile, $MFTMirr, $Secure, $UpCase and $Volume; c. The system file pagefile.sys shows a creation date of 19 April 2010. This is consistent with (a) and (b) since the creation date of pagefile.sys is shown in UTC (ie GMT) and the others in local timezone being GMT+10." (Report of 7 September 2012 at [13]). 341Mr Ghosh set out in his previous report details as to why he considered the PDF was created by the PrimoPDF software, which was also installed on 20 April 2010: Report of 7 September 2012 at [17]. 342On the basis of his conclusion as to the date that the logical disk was created and the operating system installed (20 April 2010), it followed that the PDF could not have been created on the laptop prior to that date. 343Mr Ghosh also noted that the "conversion log" shows that the PDF was created on the laptop. 344Mr Ghosh recorded his opinion in paragraph [23] of his report of 7 September 2013 as follows: "It is my opinion, based on the material I have seen and my experience, that the dates on the PDF along with the corresponding conversion logs are consistent with the following course of events: a. The date of the laptop's system clock was adjusted to show 12 April 2005; b. A Microsoft Word document called 'Letter Head [XXX] Arthur St ANZ.doc' was created on HD1P1 (or another disk) and converted to PDF using the PrimoPDF software. That resulting in the following: i. A file on that disk called 'Letter Head [XXX] Arthur St ANZ.pdf' with the creation date and last written date both appearing as 12 April 2005; ii. The creation of a corresponding conversion log on HD1P2, with a creation date appearing as 12 April 2005. c. The date of the laptop's system clock is changed back to the real date; d. The Microsoft Word document is deleted (see paragraph 64 to 66 of my prior report which explains why this was not located); e. On 26 May 2011, the PDF is copied from HD1P1 (or another disk) to HD1P2. The PDF now on HD1P2 shows a created date of 26 May 2011; f. The PDF is accessed on 29 May 2011, updating the last accessed date; g. As there are no edits to the PDF, the last written date remains the same as the original creation date ie 12 April 2005; h. The result is the PDF with the last accessed, created and last written dates as they currently appear." 345In his report of 20 February 2013, Mr Ghosh considered the affidavits of Mr Towers sworn 4 September 2012 and of Mr Noller sworn 6 September 2012. He concluded that those affidavits did not affect his prior findings: at [75]. He added further matters concerning seven versions of the PDF found on the HP Pocket Drive and Mr Kelly's affidavit when considered with the LNK files: at [75]-[76]. Mr Ghosh's reply is summarised below.

[47]

Examination of the "LNK Files" 365In Mr Kelly's affidavit dated 12 September 2012, he stated that he created the PDF on 12 April 2005 on a different computer, which was subsequently backed up onto an external backup known as "Imation hard disk" in about July 2005, and then copied from that Imation hard dick onto another external hard disk known as "HP Hard Disk" (ie, the HP Pocket Drive) on or about 26 May 2011. 366Mr Kelly did not produce the Imation hard disk when Mr Ghosh attended the Lucrum Consulting offices. 367Mr Ghosh concluded that Mr Kelly's allegations are false and that the PDF was created on the Sony Vaio laptop with the HP Pocket Drive attached to it on 26 May 2011. 368Two files called "Letter Head [XXX] Arthur St ANZ.InK" were located on the Sony Vaio laptop (the LNK files) after data recovery, that is, they are files that were deleted from the laptop. 369The first LNK file relates to the PDF found on the HP Pocket Drive (HP LNK file) and the second LNK file relation to the PDF found on the Sony Vaio laptop (Sony LNK file). 370After examining the LNK files, Mr Ghosh narrowed his opinion as to the date DJK-5 was created as sometime between 26 May 2011 and 29 May 2011. 371He also made a finding that the PDF was created on the Sony Vaio laptop with the HP Pocket Drive attached to it. 372A LNK file contains metadata that is collected from various other system files and is created and/or updated each time a user double-clicks on the file's name. LNK files are a compilation of metadata that is automatically created by the computer. 373The fact that the LNK files were found on the Sony Vaio laptop demonstrates that the PDFs were accessed using the Sony Vaio laptop. 374Special software is required to read the data in a LNK file. Mr Ghosh used such software to create a "LNK File Report". 375Mr Ghosh analysed the information in the LNK File report and concludes that the HP LNK file was created on the Sony Vaio laptop with the HP Pocket Drive attached to it and not on a different computer as alleged by Mr Kelly. The information in the LNK File report would be different if two different computers had been used to access the HP LNK file. 376If a LNK file is created by the first computer and saved on to the HP Pocket Drive and then the HP Pocket Drive is inserted into the second computer, the second computer sees the LNK file already created by the first computer and, in creating its own LNK file, the second computer will include properties of the LNK file created by the first computer. 377If the PDF had been created on 12 April 2005 on a different computer, then there would have been at least two, or more, sets of data recorded under the heading "Distributed Link Track Properties" in the LNK File Report in relation to the HP LNK file. 378The LNK File Report in respect of the Sony LNK file shows the following data: (a) Date created: 25 May 2011 (23:41:51.570) [UTC] (b) Last accessed: 29 May 2011 (13:34:58.570) [UTC] (c) Last modified: 12 April 2005 (13:22:22.258) [UTC] 379The time and date stamps recorded as date created and last accessed are precisely the same times and dates, adjusted for UTC, that appear in DJK-6 of Mr Kelly's affidavit of 12 February 2012 as the "Created" and "Accessed" dates respectively of the PDF. 380The last accessed date is the date on which Mr Kelly alleges he conducted his "experiment". 381Mr Ghosh concluded that in combination with his other findings, those dates and time related to when Mr Kelly manipulated the PDF to give the appearance that the PDF had been created earlier in time on 12 April 2005. 382Mr Ghosh examined the issues raised in the report of Mr Towers and the abovementioned affidavits. He set out his "updated" conclusions at paragraph [92]. Those conclusions did not diminish or detract from his earlier findings and conclusions.

[48]

Mr Towers' Evidence 383Clinton John Towers, Director of Access Forensics Pty Ltd, made three affidavits in the proceedings affirmed respectively on 23 August 2012 and 4 September 2012. 384Attached to his affidavit of 4 September 2012, were copies of his letter of engagement by Longmores dated 16 August 2012 ("CJT-2") and a copy of his forensic report dated 4 September 2012 with appendices ("CJT-1"). 385Mr Towers was engaged by Longmores on the following basis: "We are instructed to engage you in your capacity as an expert in computer forensics to conduct an inspection and to oversee the inspection of our client's computer server, hard disks and computer, and to provide your opinion in the above proceeding." 386The letter of engagement outlined "issues arising" (at p 2). In that respect, Longmores advised him: "An issue arising is that David Kelly's office server from 2005 crashed and his computer section was unable to recover emails. The original document was able to be recovered and was annexed to David Kelly's affidavit of 12 February 2012 at 'DJK-5'. We are assisted by the attached explanation by David Kelly as to how he located the document on his hard drive. The ANZ Bank has just raised the authenticity of the document's creation date and whether it was sent to Greg Asher on 12 April 2005 as an issue in the last few days." 387The letter subsequently requested Mr Towers to attend Mr Kelly's office on 21 August 2012 for the purpose of carrying out inspections, inter alia, of the crashed server, hard disks removed from that server and the computer in use by David Kelly and any other media on which the "original letter" may reside. It was stated that this would, inter alia, be for the purpose of: "e. investigating whether it is possible to determine the date of origination of the document dated 12 April 2005; f. investigating whether it is possible to determine whether the document was emailed to the defendant on or about 12 April 2005; g. investigating whether it is possible to determine whether the document could have been created at any later date." 388In his report dated 4 September 2012, Mr Towers noted the "Scope of Work" required of him and he summarised in paragraph [12] the items examined and/or the information collected in the form of a table. He also outlined the method he adopted preserving the integrity of the electronic data and facilitating identification of relevant information: at [13]. 389The report then records the data collection carried out on 21 August 2012: at [15]-[30]. 390In paragraph [16] of his report, Mr Towers noted: "Shortly afterwards, I had a conversation with Mr KELLY and noted the following: In May 2011 Mr Kelly had opened a blank document, changed his computer clock to match that of the letter as a testing exercise. Mr KELLY had typed some small amount of text, nothing bigger than the letter. Mr KELLY had logged in the Event log over the last 2 days and noticed it was there. Mr KELLY stated that the three hard disks (referred to as Hard disks 6-8 in my report) were from the server. He stated there may be one hard disk missing." 391Mr Towers noted that shortly afterwards Mr Ghosh attended the premises with whom he had a short conversation. He noted that Mr Ghosh commenced conducting his investigation and he observed him whilst he did so. 392Mr Towers initially attended the offices of Lucrum Consulting Pty Ltd on 21 August 2012. At pp 7-9 of his report he set out details of his hardware examination, items examined (p 10) and data analysis (pp 11-12). Earlier in his report, Mr Towers set out a "Summary of Key Findings and Conclusions" (p 3). There he set out the following: "1. The recovery of emails and documents from three hard disks said to comprise a crashed computer server (referred to in Mr David Kelly's affidavit dated 12 February 2012) was unsuccessful. The subsequent search for relevant emails and documents may be limited by this. 2. Several copies of the document 'Letter Head [XXX] Arthur St ANZ' were located on the computers examined at Lucrum Consulting premises. 3. The search at Lucrum Consulting premises for the email from Mr David Kelly to Mr Greg Asher (ANZ) dated 12 April 2005 was unsuccessful. Based on the information currently available, I am unable to provide an opinion as to the likelihood it was emailed. Access to information held by ANZ may assist . 4. Emails from Mr Greg Asher, to Mr David Kelly were located. Emails with the attachment 'Letter Head [XXX] Arthur St ANZ' were also located however, these emails were not addressed to Mr Greg Asher. 5. I was unable to confirm that the dates and times associated with the document 'Letter Head [XXX] Arthur St ANZ' were reliable." 393A joint conference took place between Mr Towers and Mr Ghosh at Gadens' office on 16 and 17 July 2013. A joint statement based upon the conference was produced and became Exhibit 17 in the proceedings. The statement comprised paragraphs constituting a statement by Mr Towers (at [6]-[18]) and a statement by Mr Ghosh (at [19]-[24]). The statement is dated 17 July 2013. 394In Mr Towers' statement at paragraph [9], he stated: "I also advised Mr Ghosh that there are a number of reasons why I cannot use these questions as a basis to complete a report today. Some of these reasons also prevent me from undertaking this by Thursday." 395In Appendix E to the joint statement entitled "Answers to the questions posed by Mr Ghosh and Ms Button" in a number of answers Mr Towers indicated that either did not have available complete records or needed the opportunity to confirm matters. Where necessary, he indicated the limitations which operated as constraints on providing particular answers or information. 396Mr Towers gave concurrent evidence with Mr Ghosh on 18 July 2013: T 478-498. 397At the commencement of the concurrent evidence, Mr McInerney stated that, having regard to the joint report of Mr Ghosh and Mr Towers, and having regard to what he described as: "... the limitations on what Mr Towers can deal with because he hasn't been provided with certain materials up until recently, I doubt I will have many questions if any for Mr Towers and I expect it will be a question of cross-examination by Ms Button of Mr Ghosh ..." (T 477:16-25) 398Mr Towers said at T 479:49-480:2: "I am happy to assist as the Court requires. I have come to this matter very recently and have had little time to get up to speed on it. I would be worried that I wouldn't cover the issues that are important to the Court. That I wouldn't identify them."

[49]

The Issue of HD1P1 - Wiping 399In his report of 4 September 2012, in discussing the Sony Vaio laptop, Mr Ghosh noted that it had two logical disk drives (HD1P1 and HD1P2) and that there were no files removed from HD1P1: at [46]. 400In paragraph [65], he said he noticed that, "the unallocated clusters of HD1P1 had been wiped". This, he said, was apparent since the unallocated clusters were all zeroes. This indicated wiping was done "not long prior to the laptop being given to him". He explained the basis for that observation. 401The effect of the wiping was to prevent standard data recovery. 402Mr Ghosh was cross-examined on this aspect: T 482:30-T 483. He was asked whether he still maintained HD1P1 had been wiped. He said it had been wiped but "I now believe that as it was set up as a cache that it was automatically done as part of the cache functionality" which, in his experience was a reasonably common way to set up a cache. 403He was asked to elaborate: "HIS HONOUR: I don't understand that. What's the significance of your present understanding on the matter you have dealt with on the earlier reports dealing with the deletion of the data? Does your earlier expression of opinion about that now still stand? WITNESS GHOSH: So to put it as simply as I can, I previously thought the overwriting was done intentionally to frustrate my efforts or frustrate recovery of files. HIS HONOUR: Wiping not long before you set about your investigation? WITNESS GHOSH: Correct. I now believe that as that partition was a cache that it was - that the wiping functionality was set up and done automatically, effectively to save space. HIS HONOUR: So that the wiping, in the situation as you have now come to believe it to be, could have been inadvertent? WITNESS GHOSH: Not intentionally done by Mr Kelly, I believe. HIS HONOUR: In other words, does it mean what might be said to have been perhaps the sinister interpretation, on which you earlier reported so far as the wiping is concerned, no longer stands? Is that the position you have arrived at? WITNESS GHOSH: I think that summarises it well. HIS HONOUR: It has become neutralised by further investigations and doesn't play a relevant part in your conclusion? WITNESS GHOSH: Not a sinister parts is the way to put it, yes." (T 483:1-31) 404The issue of "wiping" was addressed in the Plaintiff's Submissions - Liability at [33]-[35]. It was there submitted that the theory of the "wiped partition" was: "... intended to taint the plaintiff's character. It had the secondary purpose of confusing the computer evidence and had the effect of satisfying another theme of the ANZ Bank's case, that of running up the plaintiff's legal costs so as to crush him and force him to surrender." (at [35]) 405I do not consider this submission to be a valid one. Mr Ghosh volunteered in cross-examination that the "wiped partition" issue was a fact but that he had developed his opinion to the point that the cause of the wiping occurred automatically as part of the cache functionality. The issue of the "wiped" partition, HD1P1, was a discrete issue that did not affect the analysis or basis for the opinion he expressed on DJK-5. 406There was nothing put to Mr Ghosh in cross-examination to justify the submission to which I have referred. Mr Ghosh's explanation in cross-examination went without challenge. In other words his explanation was accepted as both truthful and accurate in that the contrary had not been suggested to him or proved by other evidence.

[50]

Plaintiff's Submissions on Mr Ghosh's Evidence 407The plaintiff's written submissions on liability at paragraphs [38]-[50] raised a number of matters regarding Mr Ghosh's evidence. As to paragraph [38], Mr Ghosh in his report responded to paragraphs [87] to [90] of Mr Kelly's affidavit. He did not there or at paragraph [92] state steps had been "taken to falsify records" as alleged in paragraph [38] of the submissions. Further, as stated above, Mr Ghosh gave a full explanation of the cause of the wiping of the unallocated clusters of "free space" which was favourable to Mr Kelly. 408It was submitted that Mr Ghosh had ignored what was referred to as the "sequence of Word operation within the Event Viewer of the computer". It was said that this showed that a Word document was closed on 12 April 2005. Reliance was placed upon Figure 2, page 5 of the affidavit of Mr Kelly dated 12 September 2012. A copy of that affidavit was annexed to the submissions. 409This point was relied upon for the submission that the only conclusion to be drawn was that the Word document in the Event Viewer must be what was termed "the experimental version" in regard to the date 12 April 2005. That record could only have been closed, it was submitted, on 29 May 2011 according to the Event Viewer timestamp. 410ANZ's submission was: "332 Thirdly, it has been submitted on behalf of Mr Kelly, without the allegation ever having been put to Mr Ghosh in cross-examination, that there was a 'Word document in this Event Viewer [which] must be the experimental version', and that '[t]here are two PDF files - the 'real' PDF and the 'experimental' PDF and that '[t]he based on the "creation date" a PDF that was 'modified' on 12 April 2005 was copied into the drive on or about 26 May 2011, thus changing the 'created date' to 26 May 2011 - this is the 'real' PDF." (Quoting from Plaintiff's Submissions - Liability at [41] and [124].) 411ANZ further noted that in making the above submission on behalf of Mr Kelly: "... Mr Kelly's solicitor has referred the Court to a document which is not [in] evidence." (at [333]) 412In paragraph [41] of the Plaintiff's Submissions - Liability, it was said that it did not take expert evidence to show "this logical reasoning". The submission was that the Court should use what was referred to as its "judicial discretion" to draw conclusions, in particular: (a) that there are two PDF files - the "real" PDF ad the "experimental" PDF; (b) based on the "creation date" a PDF that was "modified" on 12 April 2005 was copied into the hard drive on or about 26 May 2011, thus, changing the "created date" to 26 May 2011 - this is the "real" PDF, and (c) based on the timestamps in the Event Viewer, an experiment was conducted on 29 May 2011 regarding date changes and this is the "experimental" PDF. 413As noted above, in ANZ's Outline of Final Submissions at [334]-[335] it was noted that the document referred to in Mr Kelly's submissions as the "Event Viewer", was a document referred to in his affidavit sworn 12 September 2012 at paragraph [32] - a paragraph which had not been read in the proceedings. Furthermore it was not a matter that was put to Mr Ghosh during the course of his cross-examination. These aspects are further discussed below. 414ANZ's submission in response was that the "Event Viewer" was not in evidence, that it had not been the subject of evidence in the proceedings, and nor was it the subject of cross-examination in relation to any witness: at [335]. 415Mr Kelly's submissions, in particular, in paragraphs [78]-[89], sought to raise issues that were not put to either Mr Ghosh or Mr Towers, and they then invited the Court to make a conclusion notwithstanding that they were not raised as issues whilst the experts gave their concurrent evidence. It was not put to Mr Ghosh that his analysis and opinions in any of his three reports would require reassessment or modification or withdrawal on the basis of the matters and argument belatedly advanced in final submissions. The argument, as I have indicated, relies upon a document not in evidence - the "Event Viewer". 416In his "Summary of Findings" in his report of 7 September 2012, Mr Ghosh in particular stated: "8. The PDF purports to have been created on 12 April 2005. 9. As a result of my further examinations I have been able to narrow the findings of my prior report. In summary, my findings now are the PDF was created after 20 April 2010. 10. The above being the case, it follows that the PDF could not have been emailed on or about 12 April 2005." 417In his affidavit sworn on 22 February 2013, Mr Ghosh stated: "35. Having reviewed, in a human readable form, the historical data contained within the metadata to the two LNK files (as described in Annexure G to my report dated 4 September 2012), it is my opinion that, on the balance of probabilities: (a) The PDF, 'DJK-5', was first created on the Sony Vaio laptop on 26 May 2011, and that the PDF was not created, and therefore could not have been sent by email, on 12 April 2005; (b) Mr Kelly fabricated the PDF, which is annexure 'DJK-5' to his affidavit sworn 12 February 2012, and fabricated the '.doc' file referred to in Kelly's Affidavit; (c) Mr Kelly's evidence, that he conducted the 'experiment' in the period 26 May 2011 to 29 May 2011 in the manner suggested (described in paragraphs 17(3) to 19 above), is false, and a fabrication." 418I was impressed with Mr Ghosh as a witness. He did not at all appear to be an advocate, but rather he gave the appearance throughout his evidence of being an objective expert with full mastery of the subject to be examined for the purpose of these proceedings. His evidence analysed in an objective and methodical way the facts and issues that led him to conclude that the alleged email of April 2005 was fabricated. 419The making of a finding of fabrication requires very cogent evidence that satisfies the requisite standard, having regard to the seriousness of the allegations made by ANZ. I have, in making findings in relation to DJK-5, of course, had in mind the applicable principles: Briginshaw v Briginshaw (1938) 60 CLR 336, 362; Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170, 171. 420On the evidence, in particular on the evidence as to Mr Ghosh's examinations, findings and conclusions, and taking into account the evidence of Mr Kelly and the evidence of Mr Towers, I am satisfied to the required standard that: (1) the purported email DJK-5 was not made on 12 April 2005; and (2) that the alleged email DJK-5 was fabricated by Mr Kelly for the purpose of creating evidence to support his case based upon an alleged promise having been made by Mr Asher and through him, ANZ.

[52]

Mr Wayne O'Neill 423Mr Kelly stated that he spoke to Mr O'Neill on or about 2 November 2007 at the North Sydney property. Mr Kelly said that he said to Mr O'Neill: "Wayne, when I originally purchased this office I was promised by Greg Asher that he could get me on the ANZ QS panel. Can you please sort this out?" (Affidavit of Mr Kelly sworn 12 February 2012 at [69]) 424He also stated that he met him on 17 April 2008 and said: "Wayne, when I originally purchased this office I was promised by Greg Asher that he could get me on the ANZ QS panel. Can you please sort this out?" (Affidavit of Mr Kelly sworn 12 February 2012 at [70]) 425He then said he met Mr O'Neill on or about 19 November 2008 and said to him: "What would really help us is if you could get us onto the ANZ QS Panel. This was originally promised to me by the ANZ Customer Manager, who I originally dealt with when I took out the office loan and to date it has not happened. I know I am losing a lot of work because of it." (Affidavit of Mr Kelly sworn 12 February 2012 at [71]) 426Mr O'Neill, in his affidavit sworn on 14 May 2012, responded to paragraphs [69], [70] and [71] of Mr Kelly's first affidavit, and said: Paragraph 69 87. I met with Kelly at the North Sydney Property several times whilst the account was under my supervision. I do not recall the precise dates of the meetings. 88. I do not recall Kelly saying anything about a 'promise' (or words to that effect) to be put onto the ANZ's quantity surveyor's panel. To the extent the conversation alleged in paragraph 69 alleges that, it is denied. 89. However, I recall Kelly mentioning his desire to be put onto the panel and that he had previously spoken with Greg Asher about this. 90. I do not recall the precise words spoken by me or Kelly. 91. Kelly asked me if I could follow up the property area as to whether his company could be put on the panel. 92. After speaking with Kelly, I telephoned one of my colleagues in the property area. I do not recall who I spoke with, but it could have been Andy Collins. 93. I gave my colleague Kelly's name and phone number and asked them to call Kelly direct about what ANZ would require for Kelly to become a member of the panel. 94. In my role as a relationships manager, I do not know what criteria are required for someone to be placed onto the quantity surveyor's panel or authority to place people on the panel. I referred Kelly's query to our property area for them to contact Kelly about. Paragraph 70 95. I repeat paragraphs 87 to 94 above. 96. I do not recall the conversation alleged at paragraph 70 of Kelly's First Affidavit. 97. I recall Kelly bringing the panel query up more than once. 98. The second time Kelly brought this up with me, I told him the words to the effect that: 'I have passed his query and contact details to our property area and told them to contact you direct.' Paragraph 71 99. I recall meeting with Kelly at a coffee shop in North Sydney. I do not recall the date on which the meeting took place. 100. I do not recall whether Kelly brought up his query about being placed onto the ANZ quantity surveyor's panel at that meeting. 101. I do not recall at any of our meetings Kelly saying anything about losing money due to the bank failing to honour a commitment to place Kelly's company on the ANZ's quantity surveyor's panel." 427In cross-examination Mr O'Neill gave the following evidence: "Q. You say at paragraph 89 you recall Kelly mentioning his desire to be put on to a panel and that he had previously spoken to Greg Asher. And you say in paragraph 90 you don't recall the precise words, but could you inform us what generally might have been said at that meeting? A. From memory it would be "David would like to go on to the panel to be a quantity surveyor on to the ANZ panel" and then "he had spoken to Greg Asher about it before". Q. This is during the time when you were managing his account? A. Yes. Q. And when was that? A. It would have been 2007 through to 2010. Q. I think in your affidavit, paragraph 9 on page 3, you say it was between mid 2007 and July 2010? A. Yes. Q. So you recall a conversation had between those times about the panel? A. Yes. Q. In paragraph 91 you say that "Kelly asked me if I could follow up the property area as to whether his company could be put on the panel". The words "follow up" I am interested in. What did you mean by follow up the property area? A. To see if someone had contacted David about being on that panel. Q. And that would be in response to an earlier inquiry perhaps? A. Possibly, yes, it would be from an inquiry he may have made with my predecessors or from there." Q. And in paragraph 92 you say that you did telephone one of your colleagues and you think it might have been Andy Collins and in paragraph 94 you say 'I referred Kelly's query to our property area for them to contact Kelly about'. Now were they both the same conversation or was there something else? Was there more than one you might have had? A. No, it's the same person as Andy Collins is in the property area." (T 409:7-44) 428There was no direct challenge made in cross-examination to Mr O'Neill's recollection as to the extent of, or as to the accuracy of, his evidence in paragraphs [87]-[101] of his affidavit sworn 14 May 2012. Nor was there any challenge made as to Mr O'Neill's truthfulness in relation to those paragraphs. 429I accept Mr O'Neill as both an honest and reliable witness.

[53]

Mr George Kostov 430Mr Kostov swore three affidavits in the proceedings on 16 May 2012, 28 August 2012 and 9 July 2013. Mr Kostov was cross-examined on his affidavits on 16 July 2013: T 337-354. 431Mr Kostov was the Manager - Lending Services with ANZ and had been employed in that role since 2 March 2009. He said in cross-examination that he had only met Mr Kelly once: "Q. So did you ever meet with him? A. Yes. Q. So how many times did you meet with Mr Kelly? A. Once I believe." (T 340:14-18) 432He said at that time that Mr Kelly was present with Mr Pratt, his accountant. He said he first met Mr Kelly and his accountant on 5 August 2010. 433In respect of paragraph [72] of Mr Kelly's affidavit sworn on 12 February 2012, Mr Kostov at paragraphs [13]-[16] gave his account of the discussions in the meeting of 5 August 2010. Mr Kostov denied Mr Kelly said he had lost clients because he was not on the ANZ quantity surveyors panel and further denied that Mr Kelly said he had been promised that he would be placed on the ANZ quantity surveyors panel when he took out the "office loan". 434Mr Kostov annexed to his affidavit sworn on 16 May 2012 a copy of the file note of the meeting held on 5 August 2010: page 10 of annexure GK. 435The evidence established that the file note, termed the "General Diary Note", was written up by Mr Ravi Shah, an ANZ employee who attended the meeting with Mr Kostov. Mr Kostov and Mr Shah both signed off the note. 436The note was dated 13 September 2010. Mr Kostov was examined about the period that had elapsed between 5 August 2010 and the date of the creation of the Diary Note: see T 342-343 and T 349-350. 437In cross-examination he was asked: "Q. You say that nothing was mentioned about the panel, about Mr Kelly's company being placed on the panel? A. That is correct. Q. And no-one mentioned at that meeting, there was absolutely no discussion about it and no-one on David Kelly's behalf mentioned anything about being on the panel? A. No. Q. Did anyone subsequently to that meeting ever mention to you being placed on the panel, David Kelly's company being placed on the panel? A. Subsequent to that meeting? Q. Subsequent to the meeting on the 5 August 2010? A. Not until 2011. Q. Did anyone on David Kelly's behalf mention anything about being placed on the ANZ panel? A. No." (T 350:20-38) 438The Diary Note confirms Mr Kostov's evidence that the question of the appointment of Mr Kelly or his company to the ANZ quantity surveyors panel was not discussed at the meeting of 5 August 2010. 439In paragraph [17] of Mr Kostov's affidavit, reference was made to him having received Mr Kelly's letter of 13 April 2011 (pp 33-34 of annexure GK-1 to Mr Kostov's affidavit). In it he wrote: "... On another issue, I was advised by a client of mine at the end of last week that the use by them of Lucrum Consulting for a project funded by ANZ was not going to be permitted. This has been a constant issue as ANZ have a very specific list of QS's they will allow their clients to use. One of the reasons I originally moved to ANZ was because Tod Wills who we were dealing with at the time stated and even emailed us that he could and would get us onto that list. I might add that this would also be consistent with the advertising ANZ was doing at the time which stated that ANZ supported the small businesses that were their customers. This has cost this business more than $500,000 in fees over the last 4 or so years. I would also add that it is not on technical grounds that we are excluded because all the other financial institutions in town use us (I am doing work for CBA and Westpac right now) and I have recently appeared as the Supreme Courts expert in doing these reports." (Annexure GK 1 at pp 33-34, Court Book, Vol 3) 440It is noted that Mr Kostov in the diary note made no reference to Mr Asher having made any reference or promise to Mr Kelly or his company by way of an appointment to the ANZ quantity surveyors panel. It is also noted that there was no reference to Mr Asher in Mr Kelly's letter. He identified only "Tod Wills" as having made a statement that "he could and would get us on to that list". 441Mr Kostov in his first affidavit said: "19. At the time of receiving Kelly's letter of 13 April 2011, and again for the purposes of preparing this affidavit, I searched the Kelly Lending File for reference to a promise of this nature being made to Kelly. I could not locate any alleged email from Wills to Kelly or any other relationship managers about quantity surveyor's panel. 20. This was the first correspondence I received from Kelly about the issue of the quantity surveyor's panel." 442Mr Kostov annexed a copy of Mr Kelly's email to him dated 10 July 2011 again raising the question of the ANZ quantity surveyors panel. In relation to promises to put him on the ANZ quantity surveyors panel, Mr Kelly wrote: "... I have had so many people in ANZ promise to do it over the years that I have become a little sceptical. As you can see from the letter attached, the reason I purchased [the North Sydney property] was solely to get on this panel ..." (Annexure GK 1 at p 37) 443Mr Kelly attached to this email a copy of the alleged email, DJK-5. 444Mr Kostov said that he searched the Kelly Lending File and could not locate this alleged email from Mr Kelly addressed to Mr Greg Asher: at [23]. 445On 11 July 2011, Mr Kelly sent a further email to Mr Kostov. It read: "Greg Asher had no reservations at the time and I did ask him if he could do it several times. His response was always ANZ supports its business customers. I have spoken to Peter Nass several times over the years and it's always the same answer, he doesn't want any more on the panel." (Annexure GK 1 at p 40) 446On 11 July 2011, Mr Kostov sent an email to Mr Kelly: "David I think you misunderstood me. What I said was that I could try find out for you who would be the appropriate person to discuss such matters with. I have no authority to make any decision on who would be appointed to a [sic] ANZ panel. Nevertheless, considering you know [who?] would manage this panel, I would suggest you make contact directly with them in this regard." (Annexure GK 1 at p 41) 447There was no attack on Mr Kostov's credibility. Although the Diary Note post-dated the meeting of 5 August 2010, the delay in its making does not, in my assessment, affect its reliability or integrity. It is a detailed note. It may be regarded as a contemporaneous one. It has the unqualified support in the evidence both of Mr Kostov and Mr Shah as in fact being a comprehensive and reliable memorandum. I will refer to Mr Shah's evidence below. 448Mr Kostov impressed as a completely reliable witness. I have no hesitation in accepting his evidence on all matters addressed by him in his affidavits and in his oral evidence. I do not accept the evidence of Mr Kelly as to his account of the meeting of 5 August 2012 as set out at paragraph [72] of his affidavit of 12 February 2012. In so concluding, I have taken into account Mr Pratt's evidence to which I will refer below.

[55]

Mr Wills 454Mr Wills is an area manager in the small business division of ANZ. He swore two affidavits, the first on 16 May 2012 and the second on 29 August 2012. 455He managed Mr Kelly's Lending File between September 2005 and February 2007. 456In paragraph [44] of his first affidavit, Mr Wills stated that he did not recall any conversation with Mr Kelly about the alleged promise to put him or his company, Gleeds Australia, on the quantity surveyors panel. He did not have any independent recall of having a conversation with Mr Kelly on 11 July 2006. He referred to his diary note for that date which confirms that a meeting with Mr Kelly did take place. This note was annexed to his affidavit. The note made no reference to Mr Kelly's request or to Mr Asher's promise to put Mr Kelly and/or his company on the ANZ quantity surveyors panel. 457The note details a number of specific matters that were discussed at the meeting. They include the outlook for Gleeds Australia, the expected work that it would perform, the overdraft position, the requirements that had been conveyed to Gleeds UK, Mr Kelly's request for financial assistance up to an amount of $30,000, documents that specifically were required by ANZ, and an arrangement that Mr Kelly had with the ATO to make payment. There is no reference in the diary note to the issue of the alleged promise by ANZ. Nor is there reference to any question of an appointment being sought or being made to the ANZ quantity surveyors panel. 458Nothing raised in cross-examination of Mr Wills in any way undermined his affidavit evidence. In particular, the diary note created by Mr Wills in respect of the meeting held on 11 July 2006 represents a contemporaneous note of all the subjects that were in fact discussed. The note was created by Mr Wills himself. 459I consider that the evidence given by Mr Wills was completely reliable. His diary note provides a cogent basis in support of a finding which I do make, that, on the probability, Mr Kelly did not raise the alleged ANZ promise with Mr Wills at the meeting.

[56]

Mr Asher 460Mr Asher swore an affidavit on 18 May 2012, and two affidavits were sworn on 5 September 2012 in response to Mr Kelly's affidavits. A further affidavit was sworn on 18 July 2013. 461Between about 2000 and September 2005 Mr Asher was employed by ANZ in the position of Business Development Manager at the Hornsby Business Centre. 462He prepared a document entitled "Credit Memorandum" on or about 22 March 2005. 463At pp 45-58 of annexure GA-1 to his affidavit sworn 18 May 2012, he set out in narrative form details of a number of matters under the subheading "Corporate Background", "Management Profile" and "Other Information". 464In paragraphs [25]-[29] of his affidavit sworn 18 May 2012, Mr Asher sets out his version of what was said at the first meeting he had with Mr Kelly. 465In paragraphs [63]-[68], Mr Asher stated: "63. I deny that Kelly said to me the words or words to their effect alleged at the bottom of page 7 and top of page 8 of Kelly's First Affidavit starting 'Yes, but I have reservations...'. 64. I deny that I said the words attributed to me at the top of page 8 of Kelly's First Affidavit starting 'The ANZ supports its business customers...'. 65. At no time during this conversation, or any other conversations, did Kelly say to me that he had reservations about purchasing commercial property or that he or Gleeds wanted to be placed onto ANZ quantity surveyors' panel or that he has been trying to be put onto ANZ's quantity surveyor's panel. 66. At no time during this conversation, or any other conversations with Kelly or Norizah Kelly, did I say words to the effect that I would get Kelly or Gleeds onto the ANZ quantity surveyor's panel. 67. In any event, as I said in paragraphs 6 to 14, my role as a business development manager was to seek information from the customers and applying to ANZ credit department for approval. I had no authority to make any representations, nor did I make any representations, which could bind ANZ in relation to Kelly or Gleeds being appointed to ANZ's quantity surveyor's panel. 68. I have never had any responsibility for recommending, overseeing or implementing the appointment of persons or companies to ANZ's quantity surveyors' panel. During my employment at ANZ I was not aware of: (a) whether ANZ had a criteria that had to be satisfied prior to an appointment; and/or (b) presuming there was a criteria, what that criteria was in terms of quantity surveyor panel appointments." 466Mr Asher also gave the following evidence in his first affidavit: "71. I deny that Kelly reiterated to me any concerns about commercial property or getting onto the panel." "75. The quantity surveyor's panel was never brought up in any of my discussions with Kelly or Norizah Kelly. 76. I deny Kelly making any remark alleged in paragraph 45." "78. I deny that there was any assurance about Gleeds being put on to ANZ panel." "82. I do not recall whether or not I had a conversation with Kelly on or about 7 April 2005. 83. I deny each of the statements extracted at paragraph 47 of Kelly's First Affidavit. 84. Kelly never mentioned to me that he wanted himself or Gleeds to be placed onto ANZ's quantity surveyor's panel." "88. I did not receive the document allegedly sent by Kelly and exhibited as DJK-5 to Kelly's First Affidavit. 89. The email address on the document at DJK-5 is gasher@anz.com.au is incorrect. My email address at ANZ was asherg@anz.com. 90. I deny that Kelly at any stage indicated that he would only proceed to enter into the loans if he and/or Gleeds would be put onto the ANZ quantity surveyors' panel. 91. If at any point in time Kelly inquired of me whether he and/or Gleeds could be put onto ANZ quantity surveyor's panel (which is denied) I would have reported this to my supervisor, Steve Manning, and asked for his guidance as to who Kelly should contact at ANZ with his inquiry for ANZ to consider Kelly's request. I would have spoken to or written to Kelly to note his enquiry and notify Kelly of whom at ANZ he should contact in relation to his inquiry about applying to be placed onto the ANZ quantity surveyor's panel." 467Mr Asher was cross-examined on his affidavit evidence on 18 July 2013: at T 469-470, 471, 473:5-25 and at 473:45-474:5. 468The cross-examination of Mr Asher traversed a number of topics. Having read the evidence and having observed Mr Asher give evidence, I do not consider that there is any basis for rejecting any part of his evidence. 469Mr Asher, a former employee of ANZ, gave his evidence in a straightforward and direct manner. He relied, in part, upon contemporaneous documents which gave no support or indication of any discussion with Mr Kelly concerning the ANZ quantity surveyors panel. 470Mr Asher gave affirmative evidence to the effect that he did not receive the purported email DJK-5, observing that it contained an incorrect email address. 471Mr Asher further denied that Mr Kelly gave any indication that he would only proceed to enter the loans with ANZ if he and/or Gleeds Australia would be put onto the ANZ quantity surveyors panel.

[57]

Summary 472As at the first meeting between Mr Asher and Mr Kelly:

Mr Kelly had investigated and inspected the North Sydney property.
He had decided to purchase the property.
He had retained Mr Olstein as his financial broker.
He had obtained a 3x3 lease with Gleeds by the time he saw Mr Asher (a copy was provided to ANZ - see reference to same in Mr Asher's Credit Memorandum, exhibit GA-1 at p 53).
He had financial support from the shareholders of Gleeds UK (Messrs Steer and Murray).
He conceded in evidence that the purchase would provide him with a negative gearing benefit. 473The evidence establishes that ANZ personnel during and/or following meetings had a practice of creating contemporaneous business records of their dealings with Mr Kelly. There is no entry in any record produced by ANZ that corroborates the evidence of Mr Kelly as to the alleged promise or that he stated that he was only prepared to enter into the loan transactions with ANZ upon the basis of the promise. 474Mr Kelly, apart from the disputed email (DJK-5) and the disputed notebook entries (discussed below), up to 2011 did not maintain contemporaneous records setting out the effect of conversations he said he had with various ANZ employees. Much of what he said was discussed with ANZ employees was strongly denied by the ANZ witnesses in their sworn evidence. No unreliability was exposed in the evidence of any of those witnesses. 475There are, on the other hand, sufficient deficiencies in Mr Kelly's evidence. Those have been discussed above. I found Mr Kelly to be an unimpressive witness. The account given by him in relation to the alleged promise - the words attributed to Mr Asher - varied even in the course of his oral evidence. Further, his conduct after April 2005 is not consistent with a belief that ANZ had made a promise and then broken it. He was aware by July 2005 that ANZ had not appointed him to the quantity surveyors panel. If it had carried the significance which Mr Kelly stated it had in evidence in these proceedings, it would have been expected that he would have formally lodged a complaint with ANZ and followed up the grievance he now says he holds, and has held over the years since 2005. However, he did not do so. Indeed from July 2005 until April 2011, Mr Kelly did nothing by way of placing the alleged promise on the record, making any written complaint that ANZ had made a promise to him and that it was upon the basis of that promise that he entered into the loan transactions, or that ANZ had acted in breach of the alleged promise. 476The plaintiff's allegations of a promise and breach of promise only arose in the many years after 2005, by which time Mr Kelly was in serious financial difficulties and was under threat that ANZ would exercise its rights under the loan transactions and mortgages unless he came up with a satisfactory proposal.

[58]

PART I - PLAINTIFF'S SUBMISSIONS 477The plaintiff relied upon Plaintiff's Submissions - Liability dated 9 August 2013 and Plaintiff's Reply Submissions - Liability served on 4 November 2013. I will refer below to the former as the 'Primary Submissions' for the plaintiff and the latter as the 'Reply Submissions' on behalf of the plaintiff. The plaintiff had also earlier provided the "Plaintiff's Outline of Submissions" dated 4 July 2013. 478The fundamental submission on behalf of the plaintiff was that ANZ promised it would place the second plaintiff, Lucrum Consulting, on its panel of quantity surveyors if Mr Kelly took out a commercial loan with ANZ: Primary Submissions at [1]. 479It was argued for Mr Kelly: "2 The promise was a commercial matter between the plaintiff, his company and the ANZ Bank and was an overarching agreement ...". (Primary Submissions at [2]) 480It was further submitted that: "3 The link that the overarching promise had to the conveyance was that the loan provided consideration on the plaintiff's side for the promise by the ANZ Bank." (Primary Submissions at [3]) 481Accordingly, the fundamental proposition was that a verbal promise was made to the above effect by Mr Greg Asher. This, in the Primary Submissions, was said to have occurred on or about 13 January 2005 and verbally confirmed on or about 3 February 2005. This, as discussed above, is at variance with the allegation in the Statement of Claim, which was: "7. On about 7th April 2005 the defendant, by its servant or agent Greg Asher, orally represented to the First Plaintiff and the Second Plaintiff and offered to the First Plaintiff and the Second Plaintiff that the Second Plaintiff would become a member of the defendant's panel of quantity surveyors if: (a) The First Plaintiff remained a customer of the Defendant, and (b) The First Plaintiff proceeded with the purchase of offices at ... Arthur Street, North Sydney ("the offices") and take a commercial loan from the defendant to fund the purchase of the offices." 482The circumstances in which the date of the alleged agreement was altered during the course of the hearing to "on or about 13th January 2005" has been discussed above. 483It is a centrepiece of the plaintiff's case that although the alleged agreement was an oral one, he confirmed it in an email sent by him to Mr Asher on or about 12 April 2005, being the email marked "DJK-5" to Mr Kelly's affidavit sworn 12 February 2012. 484The plaintiff's Primary Submissions focus both upon the contention that there was an oral agreement as alleged and upon DJK-5. In respect of that email, the Primary Submissions raise a number of matters directed to ANZ's failure to produce DJK-5. In this respect the Primary Submissions contain a number of allegations asserting that ANZ have not produced DJK-5 for reasons that include:

The loss of key records by ANZ.
The deliberate deleting of emails and electronic documents, correspondence, diary notes and records of meetings.
The deliberate shredding of documents such as notebooks containing handwritten primary records.
Selectivity in extracting information from records of conversations noted in notebooks.
An inability to locate emails including those created with the last seven years in breach of Australian laws relating to the retention of records: Primary Submissions at [10]. 485In addition, the plaintiff seeks to establish conduct and failures by ANZ that explains why the original DJK-5 has not been produced and therefore is not available to tender in evidence. 486The Primary Submissions raise a number of matters asserting serious impropriety by ANZ in relation to DJK-5. In paragraph [12] of the plaintiff's Primary Submissions the submission is made: "12. The plaintiff submits that the ANZ Bank has in fact located the plaintiff's email and has avoided producing it (and associated correspondence) pursuant to subpoenas issued by the Court by attempting to have the Court believe that it, being one of the largest banks in the world, with seemingly unlimited resources at its fingertips, a sophisticated IT department controlling an electronic records retention system that spans the globe, that it has not enough time, money or capability to find the plaintiff's email." 487The plaintiff's Primary Submissions go further. In paragraph [13] it is alleged that ANZ "has attempted to cover up these matters". There are then set out subparagraphs (a) to (d) which, in various ways suggest, at the least, strategies or tactics by ANZ calculated to have the effect of resulting in a "cover up" in respect of, inter alia, the original email DJK-5 and other documents. 488It is noted at this point that ANZ objected to those submissions. In particular, as to the submission at paragraph [12] of the Primary Submissions, ANZ submitted: "... There is no basis in the evidence to support that submission. It was not suggested to any of ANZ witnesses that ANZ had in fact located the plaintiff's email. There was no reasonable basis for the plaintiff to make that submission": (ANZ's Outline of Final Submissions at [330]). 489Submissions alleging such serious impropriety are, of course, by their nature, such as to require cogent evidence that establishes a deliberate course of conduct by the defendant involving conduct designed to defeat the processes of the court. In the event of such cogent evidence being adduced, it is this Court's duty to determine the validity of such matters. However, in the present case, it must be stated immediately that there is no evidence capable of establishing the serious allegations made in the plaintiff's Primary Submissions to which I have referred above. The submissions were clearly designed to, at least indirectly, support the plaintiff's allegation that he sent the original DJK-5 to Mr Asher in proceedings in which ANZ allege impropriety against him in fabricating the exhibit, DJK-5, for the purposes of supporting his claim of an oral promise made by ANZ. 490The position being as I have determined (that there is no cogent evidence to support the plaintiff's allegations of impropriety against ANZ), it follows, of course, that such allegations should never have been made. 491The plaintiff has submitted that on the basis that an oral promise as alleged was made, he then acted upon it by accepting the offer of finance from ANZ and entering into the contract for the purchase of the North Sydney property: Plaintiff's Primary Submissions at [5]. 492The plaintiff further submitted that an oral promise as alleged having been made, ANZ's failure to place the plaintiff's company on its panel of quantity surveyors meant the plaintiff became exposed to what was contended to be a loss of "projected income as well as costs associated with the purchase of the commercial premises, capital losses and penalty interest due to ANZ Bank's actions ...": Plaintiff's Primary Submissions at [7]. 493The plaintiff submitted that he in fact recorded what he referred to as "key conversations" in notebooks and electronic form and that he followed-up on matters by phone and email: Plaintiff's Primary Submissions at [8]. 494It was further submitted on behalf of the plaintiff that, in contrast, ANZ: "... has been derelict in its duty to keep records or complete records, or has attempted to have the Court believe that ... it has not enough time, money or capability to find those records.": Plaintiff's Primary Submissions at [9]. 495In the Primary Submissions at [15]-[19], submissions are made on behalf of the plaintiff in respect of what was termed "the law relating to electronic transactions". In that segment of the submissions it is alleged: "... it is implausible for an organisation such as the ANZ Bank to have lost the entire email mailbox for Greg Asher and destroyed or lost all associated records ...": (Primary Submissions at [17]). 496There was a series of submissions made directed to two issues: (i) That a promise was made by Mr Asher to Mr Kelly as alleged. Separate submissions are made in respect of what is termed "Asher Credibility" at paragraphs [119]-[122]. (ii) That expert investigations and opinions carried out by Mr Ajoy Ghosh were erroneous. 497The Primary Submissions proceed to examine the following matters:

[61]

Ajoy Ghosh 501A number of submissions were made in the plaintiff's Primary Submissions at paragraphs [32]-[50]. Criticisms are made in relation to Mr Ghosh's expert examination. It was alleged that he replaced his instructions with his own interpretation of them and, as so interpreted, confined his report to issues: "... that could lead to an answer based only on the plaintiff's currently operating computer system, with no regard to the passage of time, the plaintiff's computer crashes and loss of emails which was the subject of the unchallenged evidence of John Noller ..." (At [32]) 502The plaintiff's further submissions dealt with the issue of the wiping of the partition of the plaintiff's Sony Vaio laptop at paragraph [33]. 503In subsequent paragraphs [36]-[50], various criticisms were made of Mr Ghosh's findings and conclusions. I have noted in particular the matters raised in paragraphs [39]-[41]. The matters raised therein are in the nature of assertions as to fact which were not the subject of evidence by the plaintiff's expert Mr Towers. They represent Mr Kelly's own contentions on the expert evidence. They were matters that were not raised in cross-examination with Mr Ghosh. 504A specific submission was also made that Mr Ghosh gave evidence for a position which was "contrary to the Code of Conduct for Expert Witnesses": at [131]. There is no evidence, in my assessment of the whole of the evidence, to support that allegation. 505The further criticism that Mr Ghosh "narrowed the issues" in a manner which would render it unnecessary to deal with what are referred to as historical events and basic data is again a submission that was made without any foundation. I have earlier analysed Mr Ghosh's evidence in some detail and need not here repeat those matters. 506A further submission was made at paragraphs [131] that Mr Ghosh "proposed theories for the sole purpose of tainting the plaintiff's credibility and confusing the issues". I again record immediately that there is no foundation for that submission and it ought not to have been made.

[62]

Additional Matters 507In separate segments of the plaintiff's Primary Submissions a number of submissions have been made under the subheadings "Computer Examination" and "PDF log and PDF", "Word file", and "MS Office". I do not here reproduce all of the matters referred to therein, although I have had regard to the submissions set out in the relevant paragraphs of the Primary Submissions. The matters raised therein are said to be relevant to the analysis necessary for the formulation of conclusions. 508Further submissions under the headings of "Confidentiality Undertakings from the Computer Forensic Expert", (paragraphs 90-93), "Loss or Destruction of Documents", (paragraph 94), and "the Plaintiff's Notebooks", (paragraph 95-110) have been examined but are not here reproduced. 509In relation to the plaintiff's notebooks, it was submitted that in or about May 2013 the plaintiff located a number of his notebooks including two for the period 2004 and 2005 (Exhibits 4 and 5 in the proceedings). 510A photocopy of the relevant pages of the notebooks was annexed to the affidavit of court-appointed expert Ms Michelle Novotny. Ms Novotny's ultimate findings were inconclusive following her examination of them. 511It was submitted that there is no basis for a finding that the plaintiff fabricated the entries many years after the fact: at [108]. The plaintiff's submission was that he could not have written the notes in 2013 by reason of what he referred to as an increasingly worsening tremor in his hand. 512The Primary Submissions returned the issue of what is identified as the "Panel promise": at [111]-[118]. The submission was that the plaintiff had been consistent in his evidence that he relied on Mr Asher to make contact with the relevant person at ANZ so that the placement on the panel would become effective on or after settlement of the purchase of the North Sydney premises in June 2005: at [113]. 513A further submission made by the plaintiff was that the process as described by Mr Peter Nass appeared to have been followed after Mr Asher spoke to him, the plaintiff, on or about 3 February 2005. It was submitted that this was the reason that Mr Asher asked the plaintiff for "background Gleeds - panel ok" and that the plaintiff subsequently provided the information on Gleeds Australia to him. 514It was submitted that the only conclusion that could be drawn from the evidence was that a conversation did take place to the effect that Gleeds Australia would be placed on the panel subject to the Bank receiving the Gleeds Australia information and the plaintiff taking out a loan: at [118]. 515In relation to Mr Asher's credibility, it was submitted that his evidence was inconsistent and should be treated with care: at [119]. 516In paragraph [120] it was submitted that Mr Asher had been inconsistent in his evidence in the respects therein referred to. 517In relation to DJK-5, it was submitted that the email was sent in April 2005 confirming the promise. 518It was further submitted that the PDF of the document sent by email which was located was not the same as the "experimental" document, the experiment being shown to have occurred on 29 May 2011 and after the document had been sent to Mr Pratt: at [124]. 519In addition, it was submitted that there is what is referred to as a "statutory presumption that the plaintiff's email was sent ...": Primary Submissions at [18]. That is, that an electronic communication is "deemed" to have been received unless an exception exists or a presumption is rebutted: at [123]. 520It was therefore submitted that the only conclusion was that the PDF was sent to Mr Asher on or about 12 April 2005 as described by the plaintiff: at [125]. 521An "electronic communication" under the Evidence Act 1995 has the same meaning as it does under the Electronic Transactions Act 2000, which includes "a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both". 522It should at this point be noted that Mr Kelly did not adduce any evidence in support of his claim that the alleged letter DJK-5 was actually sent to Mr Asher. This, Mr Kelly claims, is due to a computer crash in July 2007. 523Instead, Mr Kelly sought to rely upon DJK-5, which he claimed was an attachment to an email to Mr Asher, as evidence that it (DJK-5) was in fact attached to an email alleged to have been sent to Mr Asher. This, it may be noted, is despite the fact that Mr Kelly incorrectly recorded Mr Asher's email address in DJK-5. 524The case of Osborne v Boral Resources (NSW) Pty Ltd [2012] NSWCA 155 upon which the plaintiff relied in support of the proposition that an electronic communication is deemed to have been received unless an exception exists or the presumption is rebutted, in my opinion, has no application to the present case. 525In Osborne, the Court was asked to consider whether the presumption in s 161 of the Evidence Act would permit the Court to conclude that the appellant had received invoices that were attached to emails. However, it is to be observed that in that case, copies of the emails actually purporting to attach the invoice were adduced in evidence. 526Having regard to the relevant legislation and case law, in the absence of an actual email to Mr Asher purporting to attach DJK-5, there is no basis upon which DJK-5 may be "presumed" to have been received by ANZ: Evidence Act, s 161(1). 527The plaintiff's Primary Submissions at [127] also set out a number of matters in which it was contended the Court should find as matters of fact, and they are identified in subparagraphs (a) to (r) of that paragraph. In essence, the contention is that all of the matters the subject of the plaintiff's evidence should be accepted commencing with the plaintiff's initial approach to a broker, the plaintiff's initial contact with Mr Asher, the alleged oral promise and the reliance by the plaintiff upon it. Additionally, it was submitted the Court should find that the plaintiff did send Mr Asher the email DJK-5 confirming the oral promise on or about 12 April 2005. 528It was further submitted that the plaintiff had given consistent evidence throughout his written and oral evidence and that in almost every instance his version of events was correlated with the version given by the defendant's witnesses and other third parties.

[63]

The Promise 529In the Plaintiff's Outline of Submissions it was contended at paragraph [35] that Mr Asher had: "... represented that if the First Plaintiff proceeded with the commercial loan and transferred his residential loan and investment property loan to the ANZ Bank, the Second Plaintiff would be placed on the ANZ Bank's panel of quantity surveyors and his conversations with Greg Asher were noted in a contemporaneous notebook and followed up by an email sent that the First Plaintiff maintains was sent to Greg Asher by email on or about 12 April 2005." 530In terms of timing, it is alleged that the promise was made by Mr Asher verbally: "... on or about 13 January 2005, verbally confirmed on or about 3 February 2005 and confirmed in writing by the plaintiff in an email sent to Greg Asher on or about 12 April 2005. This documents forms 'DJK-5' ..." (Primary Submissions at [4]) 531Mr Kelly submitted that ANZ bank managers had authority to put him on the panel of quantity surveyors: Outline of Submissions at [64]. Reference was made in this respect to specific provisions in the mortgages in question. 532In that respect it was submitted that the alleged representation by Mr Asher was binding on ANZ: Outline of Submissions at [66]. 533Mr Kelly submitted that he was entitled to rely on the alleged representation as valuable consideration moving from ANZ to him under the terms of the mortgage: Outline of Submissions at [67]. 534On the issue of the alleged promise by ANZ, Mr Kelly relied upon the Primary Submissions at [111]-[118]. He also submitted that there had been inconsistency in the evidence of Mr Asher on that aspect: at [119]-[122]. 535It was submitted that the email, DJK-5, was sent by him in April 2005 to Mr Asher and it confirmed the promise made by Mr Asher: at [123]. It was submitted that: "The only undeniable conclusion that the Court can arrive at is that the PDF was sent to the ANZ Bank's Greg Asher on or about 12 April 2005 as described by the plaintiff and that the email was a business record." (at [155]) 536In paragraph [38] of the Outline of Submissions, it is stated that the email which Mr Kelly said he sent to Mr Asher on or about 12 April 2005: "... was lost when the First Plaintiff (or the Second Plaintiffs') computer server crashed in or about 2007." 537Reference was made in the plaintiff's submissions to evidence given by Mr O'Neill of ANZ at paragraph [46] of his affidavit sworn 14 May 2012. As earlier noted, Mr O'Neill was the relationship manager for the Kelly account between mid-November 2007 and July 2010. Mr Kelly relied upon Mr O'Neill's evidence of having recalled him saying that he had a desire to be put on the panel and had previously spoken with Greg Asher about it. However, there was no reference in the plaintiff's submissions to Mr O'Neill's evidence at paragraph [88] of his affidavit in which he said that he did not recall Mr Kelly saying anything about a "promise" (or words to that effect) to put Mr Kelly's company on the ANZ's quantity surveyors panel.

[65]

Submissions as to the Plaintiff's "Loss" 541Mr Kelly conceded in evidence that he became aware by July 2005 that he had not been placed on the ANZ panel. In his Outline of Submissions at paragraph [54] he somewhat surprisingly said that his wife was not made aware of that position until 2011. 542Mr Kelly submitted that he had maintained diary records of meetings and recorded conversations in notebooks whereas ANZ: "... has been derelict in its duty to keep records or complete records OR has attempted to have the Court believe that it, being one of the largest banks in the world, ... has not enough time, money or capability to find those records": (Primary Submissions at [9]). 543The written Outline of Submissions for the plaintiff do not adequately explain or address Mr Kelly's failure to write to ANZ when he found out in July 2005 that he or his company had not been placed on the ANZ panel. Nor do his submissions address his failure to do so thereafter in the years 2006, 2007, 2008, 2009, 2010 and up to April 2011. I have referred above to the fact that there was no adequate reason for not having done so. Mr Kelly's assertion that he considered it better not to do so for the sake of the "relationship" he had with ANZ is highly implausible given that no "downside" or risk in writing to ANZ about the alleged promise as identified. On the evidence there was no "downside" or "risk". 544The plaintiff's submission was that due to the ANZ's alleged failure to put his company on the panel of quantity surveyors: "... the plaintiff became exposed to loss of the projected income as well as costs associated with purchase of the commercial premises, capital losses and penalty interest due to the ANZ Bank's actions following defaults in repayment of the loan." 545However, the plaintiff did not establish: (1)That he was able to calculate how much work he would receive through being on ANZ's QS Panel. (2)Whether he made any estimation of the potential financial benefit likely to be generated from the ANZ QS Panel work over the 3 years following purchasing, and if so, the basis for such estimation and the results of any estimation. (3)What "loss" was sustained by him (as distinct from his company) by his company not enjoying an offer to join to the ANZ QS Panel.

[69]

The Plaintiff's Claim 562ANZ relied upon its "Outline of Submissions" dated 5 July 2013, and its "Outline of Final Submissions" dated 13 August 2013. 563In ANZ's Outline of Submissions it was observed that the core of the proceedings is the allegation made by Mr Kelly, denied by Mr Asher, that there was an oral agreement as earlier discussed in this judgment, and that the agreement was evidenced by DJK-5 attached to Mr Kelly's affidavit. 564In paragraph [14] of ANZ's Outline of Submissions it was contended that the evidence of Mr Ghosh establishes that DJK-5 is a fabrication. 565Relevant case law principles were identified in ANZ's submissions that support the proposition that where a party relies upon spoken words as a foundation for a cause of action, including a cause of action based on contract, the conversation must be proved to the reasonable satisfaction of the Court, that is to say that the Court must feel an actual persuasion of its occurrence or its existence. A similar principle is said to apply in relation to an allegation of misleading and deceptive conduct: Outline of Submissions at [20]-[21]. 566It was further submitted for ANZ that statements attributed to its employees by the plaintiff, which are denied, were insufficiently precise and are inherently ambiguous such as they could not constitute a contractual term varying the loan agreements. 567ANZ further submitted that the parties intended that the written loan agreements were to be an all-embracing and binding record of the terms and conditions of the loan agreements. 568In summary, ANZ's case as set out in its Outline of Submissions was that Mr Asher did not make any representation or promise to Mr Kelly, that Mr Kelly did not send the disputed email to ANZ, that ANZ accordingly did not receive the disputed email, and that there was no contract to the effect as pleaded in the Statement of Claim. 569Further, ANZ denied that it engaged in any conduct in trade or commerce which was misleading or deceptive or likely to mislead or deceive. 570Additional contentions were raised by ANZ concerning the absence of reliance by Mr Kelly on any conduct by it and it additionally submitted that, in any event, the plaintiff had not established causation. 571ANZ further contended that Mr Kelly suffered no loss by reason of any conduct of ANZ, and that Mr Kelly in any event is prohibited from suing in respect of any loss suffered by his company due to the "reflective loss" principle. 572ANZ also argued that a claim in contract is not maintainable by reason of the fact that any cause of action is statute barred and that any misleading or deceptive conduct is also statute barred: ANZ's Outline of Submissions at [27]. 573ANZ additionally relied upon its Outline of Submissions on the Cross-Claim dated 10 July 2013. 574Paragraphs [3]-[8] of those submissions set out the primary facts relied upon in support of the claim by ANZ of a debt owing to it by Mr and Mrs Kelly. Paragraph [9] sets out the matters that are admitted on the Defence to Cross-Claim filed 24 November 2011 and in paragraph 9 the matters that are denied. In paragraph [10] of those submissions it was noted that Mr Kelly's Defence to Cross-Claim in substance, was that he and his wife are not in default of the facilities by reason of ANZ's alleged failure to comply with the representation/promises with respect to placing the second plaintiff on ANZ's panel of quantity surveyors. 575ANZ relied upon its Outline of Final Submissions dated 13 August 2013. 576The Final Submissions were structured under the following headings: Part A - The Witnesses; Part B - Background Facts; Part C - A Fabricated Case?; Part D - No Collateral Contract; Part E - No Misleading Conduct; Part F - No Loss and Damage; Part G - Company Losses; Part H - No Reliance; Part I - No Causation; Part J - Limitation Defences; Part K - Cross Claim; and Part L - ANZ's Response to the Plaintiff's Submissions on Liability. 577ANZ's Outline of Final Submissions run into some 380 paragraphs and provide a detailed analysis of the relevant facts and issues arising in the primary proceedings and on the cross-claim. They also set out the submissions and contentions made on behalf of ANZ in respect of the issues that fall for determination. I do not mean any disrespect to Senior Counsel for ANZ in not setting out all of those submissions in this, an already lengthy judgment. I have, of course, closely considered all the written and oral submissions made on behalf of both Mr Kelly and ANZ in these proceedings. I will here largely confine myself to dealing with particular issues and contentions made on behalf of ANZ. 578In paragraph [3]-[5A] of ANZ's Outline of Final Submissions it was stated: "3. ANZ's primary submission is that Mr Kelly's case is a fabrication: (a) There was no ANZ Promise. Mr Kelly's evidence to the contrary was false to his knowledge; (b) Mr Kelly created the pdf, "DJK-5", on 26 May 2011 for the purpose of pursuing a claim for damages against ANZ knowing that claim to be false, and in circumstances where the facilities were in default and a claim by ANZ for debt and possession was imminent, and was known by Mr Kelly to be imminent following ANZ's letter to Mr Kelly dated 24 May 2011; (c) Mr Kelly concocted evidence by adding the following entries into his 2005 notebook some time after the surrounding entries, and in all likelihood at some time in 2013 after Mr Kelly prepared the schedule, Exhibit 9, to corroborate his case against ANZ: (i) the entry on page 28 of the 2005 notebook starting with "Greg ANZ" and ending with "9482 0009"; (ii) the entry on page 46 of the 2005 notebook starting with "Greg Asher" and ending with "-panel OK"; (iii) the unsourced impression on page 46 of the 2005 notebook. 4. In the alternative, ANZ submits that Mr Kelly's case is not established on Mr Kelly's evidence, which was: (a) unreliable; (b) implausible; and (c) inherently unlikely. 5. ANZ submits that the Court should make the following primary findings: (i) Mr Greg Asher did not make the ANZ Promise to Mr Kelly in 2005; (ii) In the alternative, the Court cannot be satisfied that Mr Asher made the ANZ Promise to Mr Kelly in 2005; (iii) Mr Kelly did not speak with Mr Anthony Robins in 2005; (iv) In the alternative, the Court cannot be satisfied that Mr Kelly spoke with Mr Anthony Robins in 2005; (v) Mr Kelly did not send a letter to ANZ, addressed to "Mr Anthony Robbins", on 3 March 2005; (vi) In the alternative, the Court cannot be satisfied that Mr Kelly sent a letter to ANZ, addressed to "Mr Anthony Robbins", on 8 March 2005. If Mr Kelly had done so, it is likely that Mr Kelly's letter dated 8 March 2005 would have been kept by Mr Robins in his file of panel related correspondence with quantity surveyors and valuers. Mr Kelly's letter dated 8 March 2005 to Mr Robins was not located by Mr Robins in his correspondence file; (vii) Mr Kelly did not make any complaint concerning the ANZ Promise at any of the meetings attended by Mr Kelly with ANZ in 2006, 2007, 2008, 2009 or 2010; (viii) In the alternative, the Court cannot be satisfied that Mr Kelly made a complaint concerning the ANZ Promise at any of the meetings attended by Mr Kelly with ANZ in 2006, 2007, 2008, 2009 or 2010; (ix) ANZ gave Mr Kelly every available opportunity to re-finance, or to sell the North Sydney Property, Blackwall Property, or Dural Property, to remedy his defaults under the ANZ Business Loan, the Residential Investment Loan, and the Home Loan, before ANZ's letter to Mr Kelly dated 24 May 2011. (original emphasis) 5A. ANZ brought a cross-claim in these proceedings against Mr Kelly for debt due and owing under the facilities and against Mr Kelly and Mrs [sic] Kelly's wife, Norizah Kelly, for possession of the properties securing the debt owing under the facilities. Mr and Mrs Kelly's Defence to Cross-Claim, in substance, is that they are not in default of the facilities by reason of ANZ's alleged failure to comply with the ANZ Promise. For the reasons set out in these submissions, the Court should find that Mr and Mrs Kelly's Defence to Cross-Claim is not established, and ANZ is entitled to judgment on the Cross-Claim." 579ANZ submitted that Mr Kelly's case is a recent invention, which was continually being reinvented by him during the course of the litigation, to suit the exigencies of his claim for damages in an effort to forestall the inevitable judgment for debt and possession which would be entered against him and his wife in favour of ANZ by reason of his failure to make interest payments as they fell due under the relevant loans: Outline of Final Submissions at [10]. 580ANZ contended that Mr Kelly is an intelligent businessman with considerable commercial experience in dealing with contracts and contract law, and in giving evidence before courts and tribunals. 581Details in support of ANZ's contentions are set out in the ANZ's Outline of Final Submissions at paragraph [12]: "The evidence of Mr Kelly's continual changing of position includes: (a) the failure to 'go on record' by writing to ANZ to make a complaint about the ANZ Promise or to seek to be included on ANZ quantity surveying panel until 13 April 2011, even when he could 'see the writing on the wall' that ANZ was moving in to exercise its rights. (b) the assertion on 13 April 2011 that Mr Tod Wills made the ANZ Promise, which had been confirmed by an email sent by Mr Wills to Mr Kelly; (c) the fabrication of the pdf, 'DJK-5', on 26 May 2011 which is only two days after the letter from ANZ dated 24 May 2011 in which ANZ informed Mr Kelly, inter alia, that it was not in a position to offer him a refinance of his facilities, and advised him that ANZ would proceed to enforce its security under its mortgage; (d) the assertion by Mr Kelly on 10 July 2011 that the pdf, 'DJK-5', was sent to Mr Asher at ANZ; (e) the assertion on 19 September 2011 that the pdf, 'DJK-5' was sent to the incorrect email address, 'gasher@anz.com.au'; (f) the assertion by Mr Kelly on 17 October 2011, after it became clear that Mr Asher's incorrect email address was 'gasher@anz.com.au' (following Gadens' letter to the liquidator dated 7 October 2011), that Mr Kelly had sent the pdf. 'DJK-5', to 'asherg@anz.com'; (g) the failure by Mr Kelly to explain in any of his affidavits before 12 September 2012 (which, in any event was in response to Mr Ghosh's reports dated 4 September 2012 and 7 September 2012) to explain the process by which Mr Kelly first located the pdf, 'DJK-5', in the period from 26 May 2011 to 29 May 2011. (h) the failure by Mr Kelly to inform his solicitor, Ms Button, about the testing and experimentation Mr Kelly carried out on his computer in the period from 26 May 2011 to 29 May 2011 until 14 August 2012 (and only after ANZ had requested inspection of Mr Kelly's laptop computer and other media). A call for production was made by ANZ for '[a]ny note made by Ms Button of being informed by Mr Kelly about testing or experimentation undertaken on his computer in the period 26 May 2011 to 29 May 2011 (T271, L22-24). Ms Button produced a handwritten file note dated 14 August 2012 which recorded 'Accidentally moved it outside ↓ the directory ... back up disk...changed the date'. To the extent this constitute evidence of Mr Kelly's alleged testing and experimentation, this evidence demonstrates that Mr Kelly did not inform Ms Button about Mr Kelly carrying out testing and experimentation on his computer in the period 26 May 2011 to 29 May 2011 until 14 August 2012; (i) the version of events given by Mr Kelly to Mr Clinton Towers on 21 August 2012 about changing the clock on his computer (which is quite different from the version given by Mr Kelly to Ms Button on 14 August 2012); (j) the failure by Mr Kelly to locate his original notebooks for the period from 2004 to April 2005, and bring them forward in evidence until June 2013, even though those original notebooks had been located in Mr Kelly's office with his other notebooks. (k) the failure by Mr Kelly to bring the 'MPSR' document, Exhibit B, into evidence until 18 July 2013." 582Examples of what were described as Mr Kelly's changing position with respect to his evidence in cross-examination are set out in paragraphs 3 to (c) of ANZ's Outline of Final Submissions. 583It was further contended that Mr Kelly's answers were incomplete, evasive and not responsive to questions asked, or were simply implausible. Examples were provided in paragraphs 15 to (l) of ANZ's Outline of Final Submissions. 584Part B of ANZ's Outline of Final Submissions details relevant background facts. It is unnecessary here to set out that part of the submissions. Having read paragraphs [21] to [152] of ANZ's Outline of Final Submissions, I am satisfied as to the accuracy of the discussion of the factual matters therein set out. I additionally accept the submission made in paragraph [57] that Mr Kelly had an understanding that the terms of the contract that he was entering into with ANZ concerning the loan for the North Sydney property consisted of those in the Letter of Offer dated 13 April 2005 and the attached "Conditions of Use" and that they were the only terms which were to govern the contract that he was making with ANZ concerning the loan for the purchase of that property. 585The submission for ANZ at paragraph [58] of its Outline of Final Submissions was that before 13 April 2005 no one from ANZ had told Mr Kelly that he had been appointed to the ANZ quantity surveyors panel. 586It was submitted that Mr Kelly knew, with all his years of experience as a quantity surveyor dealing with bank panels, that he could not make any assumption about being appointed to such a panel unless he had been notified that he had been appointed. 587It was contended at paragraph [60] that at the time he entered into the business loan with ANZ there was nothing from ANZ which could have indicated to him that he had been appointed to the panel at that date. 588Part C of ANZ's Outline of Final Submissions addressed the issue as to whether or not Mr Kelly's case was a fabricated one, and a number of matters are set out in detail which ANZ argued supported the serious contention that his case was fabricated in material respects. 589ANZ submitted that the email which Mr Kelly sent to Mr Kostov on 13 April 2011 was the first time Mr Kelly made a complaint in writing alleging that a promise had been made on behalf of ANZ before he entered into the Business Loan in 2005: Outline of Final Submissions at [155]-[156]. 590It was submitted on behalf of ANZ that the email retrieved from Mr Kelly's laptop indicated that the first time he sent DJK-5 to anyone was on 29 May 2011. This was sent to Mr Pratt, his accountant: at [162]. The evidence also established that he had not sent it to his former solicitor, Ms Madison Shakespeare, before 29 May 2011: Outline of Final Submissions at [165]. 591ANZ's submission was that the first time he sent the PDF to Ms Shakespeare was on 30 May 2011, the subject of the matter of the email being "New Matter": Outline of Final Submissions at [166]. 592ANZ noted in its Outline of Final Submissions at [185] that Mr Kelly did not send DJK-5 to ANZ until 11 July 2011. It was further submitted that that PDF was anomalous in two respects. Firstly it was on the letterhead of David J Kelly & Associates, notwithstanding that Mr Kelly had been using the branding of Gleeds Australia on his emails and other correspondence since that business commenced on 1 February 2005. The second was that the email address stated on DJK-5 "gasher@anz.com.au" was incorrect. The part of the email before the "@" sign on DJK-5 stated "gasher" rather than "asherg". Additionally, after the "@" sign the PDF stated "anz.com.au" rather than "anz.com". 593It was further noted that it was only after Gadens Lawyers wrote to the liquidator on 7 October 2011 (copied to Mr Kelly's solicitor, Ms Button) that Mr Kelly became aware that DJK-5 contained the incorrect email address "gasher@anz.com.au". 594It was also observed at paragraph [191] of ANZ's Outline of Final Submissions that the first time Mr Kelly informed his solicitor, Ms Button, about carrying out "testing" and "experimentation" on his Sony Vaio computer in the period 26 May to 29 May 2011, was on 14 August 2012. This, it was noted, occurred only after ANZ had indicated through its solicitor that they intended to apply for an order for their forensic computer expert, Mr Ghosh, to inspect Mr Kelly's computer and other media. 595ANZ relied upon what was said to be the unchallenged evidence of Mr Ghosh that on a date after 2010, and most probably on 26 May 2011, Mr Kelly changed the clock on the Sony Vaio laptop to reflect a date which was 12 April 2005: at [197]. 596Reliance was placed upon Mr Ghosh's opinion as to a number of aspects: Outline of Final Submissions at [198]-[202]. 597In relation to this issue of the plaintiff's notebooks, ANZ's submission was that Mr Kelly first referred to an original notebook from 2005 in his affidavit sworn on 6 June 2013 and first referred to an original notebook from 2004 in his affidavit sworn 17 June 2013: Outline of Final Submissions at [210]. 598ANZ challenged Mr Kelly's assertion in evidence that he did not give any consideration until 2013 to looking at the original notebooks for the period 2004 through to April 2005: Outline of Final Submissions at [221]. No mention had been made of any original notebooks from 2004 or 2005 in his affidavits of 17 February 2012 or 13 February 2012. Nor was there any reference to those notebooks in his affidavit sworn 6 July 2012: Outline of Final Submissions at [208]. 599It was submitted for ANZ that in circumstances in which the document prepared by Mr Kelly, the "Schedule of Events" (Exhibit 9), came to be prepared in June 2013, and the circumstances in which it was prepared are sufficiently suspicious (being nine months after the allegation of fabrication of DJK-5 had first been raised in the proceedings in September 2012), to enable the Court to find that Exhibit 9 was another recent invention: Outline of Final Submissions at [224]. 600It was submitted on behalf of ANZ: "The Court should find that the most likely explanation, having regard to the improbability of Mr Kelly's story that he did not think to refer to the notebooks for the period 2004 to April 2005 until June 2013, and only then after he had prepared the Schedule, Exhibit 9, is that Mr Kelly concocted the Schedule, Exhibit 9, and then added entries to his 2005 notebook, at pages 28 and 46, and the unsourced impression on page 46 of his 2005 notebook, to give the appearance of a contemporaneous note of phone conversations with Mr Asher on 13 January 2005 and 3 February 2005." (at [227]) 601I will refer to these submissions below in my consideration of relevant issues. 602In Part D of ANZ's Outline of Final Submissions it was contended that there was no basis for a finding that there was a collateral contract. It was noted that there were entire agreement clauses included in the contractual documents entered into between the plaintiff and ANZ in respect of the loans. 603Mr Kelly, it was noted, had agreed in evidence that he understood the purpose of an entire agreement clause and had admitted that he knew that the terms of the contract for each of the loan facilities was contained in the Letter of Offer and the standard terms and conditions. 604It was submitted that the claim pleaded by Mr Kelly for breach of contract must fail at the threshold for the reasons set out in the submissions: at [259]. 605In relation to the cause of action based on misleading conduct, it was submitted that the Court should find that there was no misleading conduct by reference to any words alleged to have been spoken by Mr Asher to Mr Kelly. 606In Part F, ANZ sets forth submissions based on the "reflective loss" principle: at [277]-[281]. I will refer to this aspect below. 607It was submitted for ANZ that Mr Kelly's experience as a quantity surveyor before 2005 was relevant to his understanding as to what was involved in an appointment to a panel of quantity surveyors with a bank. It was stated that he understood that there would an exchange of written communication with a bank concerning such an appointment detailing the matters set out in sub-paragraphs (a) to (g) at [284] of ANZ's Outline of Final Submissions. 608In relation to the issue of causation, it was submitted that the statutory cause of action in misleading conduct arises when the plaintiff suffers loss and damage "by" the contravening conduct of another person. That word clearly expresses the notion of causation. The submission was there was no causation between any loss or damage alleged to have been suffered by Mr Kelly in circumstances where he had varied his loan facilities with ANZ on the following dates: (a) 24 November 2005 (ANZ Business Loan) (b) 11 June 2008 (ANZ Business Loan) (c) 15 June 2008 (ANZ Business Loan) (d) 15 September 2008 (the new home loan for the Dural property) (e) 29 October 2008 (new residential investment loan for the Blackwall property). 609In relation to limitation defences, the submissions separately addressed the claim in contract and the misleading conduct claim. 610As to the former, reference was made to the limitation for breach of contract as six years under the Limitation Act 1969 (s 14(1)(a)). In respect of the separate loans, each were accepted respectively on 19 April 2005, 11 May 2005 and 11 May 2005. 611The pleaded promise that Gleeds Australia would become a member of ANZ's quantity surveying panel was said to be based on if Mr Kelly proceeded with the purchase of the North Sydney property. 612ANZ's submission was that if there was a contract to the effect pleaded, ANZ had acted in breach by failing to place Gleeds Australia on its surveying panel by 18 May 2005 (the date of the purchase of the North Sydney property). The Statement of Claim was filed on 20 June 2011. The claim was therefore statute barred. 613In relation to the misleading conduct claim, the relevant limitation period was six years. Again, based upon the factual matters set out in paragraphs 296 to 300, it was submitted that based on Mr Kelly's admission that he or Gleeds Australia had first suffered the alleged loss and damage in relation to his claim in May 2005 and certainly before June 2005, the claim for misleading or deceptive conduct was statute barred on 18 May 2005 or before 20 June 2011.

[70]

ANZ's Response to the Issue of Reliance and Projected Returns 614ANZ submitted: (i) That there was no evidence of "reliance" by Mr Kelly upon the alleged promise; (ii) That MPSR Schedule (Exhibit B) should not be accepted as evidence as to Mr Kelly's consideration of income he expected that Gleeds Australia would receive from being appointed to ANZ's quantity surveyors panel. 615In relation to Part F of ANZ's Outline of Final Submissions it was contended that no loss or damage had been established. In particular, on the issue of "reliance", it was observed that in the circumstances in which Mr Kelly considered the purchase of the North Sydney property would be a good investment for negative gearing purposes, he proceeded to purchase the North Sydney property believing it to be a good long term investment. 616It was further noted that by 9 February 2005 Mr Kelly had decided to purchase the North Sydney property for the abovementioned reasons. It was submitted that he did not suffer any loss or damage by the conduct on the part of ANZ. 617Further, for reasons set out in paragraphs [285]-[288], it was submitted that the Court should find that Mr Kelly did not rely on ANZ's conduct in proceeding to purchase the North Sydney property. 618In ANZ's submissions on reliance, it was contended there were three reasons why the Court should find that Mr Kelly did not rely on ANZ's conduct in proceeding to purchase the North Sydney Property: "First, the Court cannot accept Mr Kelly's evidence that he relied on ANZ's conduct because Mr Kelly's evidence changed at least three times in respect of this issue: (a) first, in his Statement of Claim filed 20 June 2011 Mr Kelly asserted that ANZ had made a promise to him that Gleeds Australia would be appointed to the ANZ quantity surveying panel if Gleeds Australia took out the commercial loan for the North Sydney Property; (b) secondly, under cross examination on 11 July 2013 Mr Kelly asserted that Mr Asher had told him that Gleeds Australia had been appointed the quantity surveying panel before Mr Kelly had taken out the ANZ Business Loan; (c) thirdly, then Mr Kelly changed his evidence on 12 July 2013 to assert that he had been told by Mr Asher that he would be appointed to the ANZ quantity surveying panel after settlement of the purchase of the North Sydney Property. Secondly, and in any event, the true position is that Mr Kelly saw a good investment opportunity to purchase the North Sydney Property in order to negatively gear that investment to reduce his taxable income, and he had made a decision to purchase the North Sydney Property by 9 February 2005, well before any alleged misleading conduct, or any alleged breach of promise, on the part of ANZ. Thirdly, Mr Kelly well understood that he had entered into three separate and distinct loan contracts with ANZ in respect of the commercial loan for the North Sydney Property, the home loan for the Dural Property and the residential investment loan for the Blackwall Property, and that the entirety of the contractual terms for each of those contracts was contained in the letter of offer and the standard terms and conditions enclosed with the letter of offer. Mr Kelly knew that there was nothing within those contracts which contained any reference to Gleeds Australia, and that Gleeds Australia was not a party to those three contracts." (ANZ's Outline of Final Submissions at [286]-[288]) 619On the issue of the MPSR Schedule, ANZ's submissions were as follows: "Under cross examination the only document Mr Kelly could point to before 13 April 2005 which would give any indication that he had given any thought to Gleeds Australia receiving income for being appointed to a banking panel, as a basis for purchasing the North Sydney Property, was an internal document known as the "MPSR" which he had not included in any of the affidavits he had sworn in the proceedings. The first time Mr Kelly had told anyone about the "MPSR" document was his solicitor about two months before commencement of the trial. Mr Kelly conceded that he had not told his solicitor about the "MPSR" document at any time before that. In re-examination Mr Kelly tendered Exhibit B, being page 23 from a Gleeds Australia budget, described by Mr Kelly as a "MPSR". Exhibit B was entitled "Gleeds Australia monthly business plan projected fees". Exhibit B was printed on 28 May 2013. It is likely that Mr Kelly told his solicitor, Ms Button, about Exhibit B shortly after it was printed off. Mr Kelly asserted that it was not a conscious decision on his part not to include Exhibit B in his affidavits sworn 6 June 2013, 17 June 2013, 10 July 2013. There is nothing in Exhibit B to indicate what sources of further work were included in the line 'projected increase in work (based on 10%)'. As at February 2005, Gleeds Australia contemplated a number of different sources of work. It had been part of the business plan which Mr Kelly had proposed to Gleeds UK that upon the joint venture being incorporated between Gleeds UK and David J Kelly & Associates that there would be a number of new sources of income from the incorporated joint venture. The new sources of work included a number of potential new panels. That was the reason why in March 2005 Mr Kelly had sent out at least six letters to banks making expressions of interest for work from their panels. Mr Kelly explained that the projected increase in work, as shown on Exhibit B in the line 'projected increase in work (based on 10%)', 'was an allowance which was made for principally increasing our client base with ANZ specifically in mind' and that 'it was just an allowance at this stage to acknowledge that there would hopefully be an increase in income as a result of specifically ANZ'. Mr Kelly's explanation for not including Exhibit B in any of his affidavits sworn 6 June 2013, 17 June 2013, 10 July 2013 was that it had slipped his mind. Mr Kelly asserted that it had always been his view that the entry on Exhibit B 'projected increase in work (based on 10%)', carried the meaning that it was projected income referable to a number of sources, including being on the ANZ quantity surveying panel. Mr Kelly did not know why it was that if he had always held that view, that the projected figure reflected projected income from being on the ANZ QS panel, why he had not included Exhibit B in any of the affidavits he had sworn in the proceeding. Mr Kelly changed the evidence given in respect of the MPSR schedule between the time of re-examination and cross-examination during the course of the same morning. (a) During re-examination Mr Kelly stated: 'The projected increase in work was an allowance which was made for principally increasing our client base with ANZ specifically in mind' and to acknowledge that there would 'hopefully be an increase in income as a result of specifically ANZ'. (b) During the subsequent cross-examination, Mr Kelly changed his evidence to state that the projection in the MPSR schedule was: 'just an allowance at the time based on 10 per cent of his company's income, just as acknowledgment as much as anything else that there would be income from other sources as well as ANZ.' Mr Kelly could not offer an explanation as to why he had not brought into evidence the MPSR schedule before the commencement of the hearing. Mr Kelly stated it was not a 'conscious decision', it 'slipped his mind' or 'I really don't know'. This is despite the following: (a) Mr Kelly took trouble to print the MPSR schedule on 28 May 2013 and then told Mr Loiterton about it and discussed it with Ms Button; (b) Mr Kelly subsequently prepared three further affidavits of 6 June 2013, 17 June 2013 and 10 July 2013; (c) Mr Kelly asserted that he had always held the view that the projected increase figure was an entry recorded by him, or created by him, as reflecting at least in part projected income from ANZ; (d) Mr Kelly agreed that his affidavits in the case dealt with issues which related both to the question of damage and liability, and that it was in his contemplation when preparing his affidavits that evidence would be directed to damages as well as liability." (ANZ's Outline of Final Submissions at [228]-[242])

[71]

The Cross-Claim 620In Part L of ANZ's Outline of Final Submissions its response to the plaintiff's submissions on liability is set out: at [319]-[379]. 621By reason of the matters set out in those paragraphs, it was submitted the Court should reject the plaintiff's submissions on liability: at [380]. 622ANZ sought to rely upon its "Supplementary Outline of Submissions" dated 14 November 2013. These raised matters in response or reply, to particular matters that had been raised in the plaintiff's Reply Submissions that were served by his then solicitor, Ms Button, on 4 November 2013. 623ANZ contended it was entitled to reply to the matters raised in the plaintiff's Reply Submissions on a number of grounds, including the fact that matters had been raised by the plaintiff's solicitor which were said to be in disregard of The Revised Professional Conduct and Practice Rules 1995: see [2]-[4]. 624In addition, various submissions were made on behalf of Mr Kelly, including that ANZ had acted without good faith, had prevented the plaintiff from obtaining records on subpoena, and that Mr Ghosh had acted in breach of confidentiality undertakings to the Court. These, and several other matters, were said to impugn the integrity of both ANZ's solicitors and its expert witness. 625On 9 December 2013 I re-listed the matter on which date I granted leave to ANZ to rely upon its Supplementary Outline of Submissions. 626Mr Kelly then raised the question of him having a further right of reply. Mr Kelly's reply submissions were directed to attacking the integrity of ANZ and its legal representatives and raising allegations which I determined on the latter date to be scandalous in nature. I indicated that a further round of submissions by way of reply from Mr Kelly was neither available to him nor appropriate. In this respect it is noted that ANZ's Supplementary Outline of Submissions sought leave as a matter of natural justice to address Mr Kelly's Reply Submissions which ANZ contended were made in disregard of The Revised Professional Conduct and Practice Rules 1995 and raised a series of matters that were not in the nature of a reply.

[73]

Evidence Disputing the Making of a Promise 630The evidence given by Mr Kelly as to the promise allegedly made by Mr Asher to him varied in the course of his evidence. 631Mr Kelly at paragraph [42] of his first affidavit stated, incorrectly, that he initially approached his finance broker, Mr Olstein, concerning the purchase of a commercial property in April 2005. He in fact first met him on 10 January 2005. 632The account of the promise which Mr Kelly gave in his affidavit was as follows: "43 I subsequently received a telephone call from the defendant's Relationship Manager, Greg Asher of the ANZ Hornsby Business Centre. We had a conversation in words to the following effect: Greg: "I'm the ANZ's Relationship Manager and I'm calling from the ANZ Hornsby Business Centre. I have been given your details by Gerard Oldstien [sic] and I understand you are wanting to refinance and are also interested in a loan for a commercial property you are thinking of purchasing. I am calling to arrange for a valuer to assess the property." Me: "Well, I'm in the office most of the time, so you can come any time." Greg: "So you are considering purchasing your office?" Me: "Yes, but I have reservations about purchasing it as I don't really understand commercial property. It would help a great deal if you could get my company, Gleeds Australia onto the ANZ QS Panel. I have tried several times and I have also sent Gleeds' details in to the ANZ but I keep getting told the panel is full. I can't really understand why because the ANZ doesn't have anything to lose by putting Gleeds on the panel." Greg: "The ANZ supports its business customers and I am sure we can get you on the panel, especially if you have commercial loans with us." 44 Greg Asher and I had approximately two subsequent conversations and on those calls I reiterated my concerns about commercial property and getting onto the panel. I finally said to Greg Asher, in words to the following effect: Me: 'The only reason I am going through with the purchase of the office is to get on your panel.' 45 I also remember making some half joking remark that being on the panel would probably mean I would pay the mortgage off in five years. ... 47 On or about 7 April 2005, I called Greg Asher, the defendant's Relationship manager. We had a conversation in word to the following effect: Me: 'Greg, I am thinking that I may not proceed with the purchase of the office. I am not convinced that the investment potential is as good as I first thought. Can you tell me, if I do go ahead with it, can you get us onto the QS panel at the ANZ? I have tried and keep getting told it is full.' Greg: 'I am sure I can get you onto the panel if you are an ANZ customer, especially if you have commercial loans with us'. Me: 'Are you sure about this, because to be frank about it I will not continue with the purchase otherwise. Greg: 'I am sure, ANZ supports our business customers'." 633Uncertainty as to Mr Kelly's account of what Mr Asher is alleged to have said to him arises from Mr Kelly's own evidence and the variations to it. 634The first account given by him of the relevant conversation with Mr Asher was not that Mr Kelly or his company would be appointed to the ANZ quantity surveyors panel, but he said that he was told by Mr Asher that the appointment to that panel had been made in February 2005. 635His evidence on this matter was as follows: "Q Now, when is it that Mr Asher, do you say, told you that you had been appointed to the ANZ quantity surveying panel? A. Mr Asher advised me that we were on the panel. Q. When did he do that, Mr Kelly? A. During the middle of February. Q. You are suggesting, are you, that Mr Asher had told you that you were on the panel in the middle of February before you had even sent the letter of 8 March 2005 to ANZ? A. Correct. Q. At 13 April 2005 you had no understanding of the criteria to be satisfied for the ANZ quantity surveyors panel, did you? A. I assumed the criteria was the same as other panels." (T 117:50-118:14) ... "Q. Is it your position, as I understand it, that you were notified of appointment to the ANZ QS panel by Mr Asher in mid February 2005, is that what you are saying? A. Yes." (T 118:44-47) 636Later in cross-examination on 12 July 2013 at T 159, Mr Kelly retreated from his account of what he said Mr Asher had said to him in terms of him having been appointed to the panel: "Q. As at 20 April 2005, Gleeds Australia was not on the quantity surveying panel with ANZ, was it? A. No. Q. And you'd agree, wouldn't you, that any loss of opportunity from Gleeds Australia not being on the panel, followed from at least 20 April 2005, correct? A. No, I expected to be on the panel some time after settlement. Q. Are you saying, that you didn't, as at 20 April 2005, you didn't hold a belief that Gleeds Australia was on the panel with ANZ? A. I held a belief that we would be put on the panel after we settled. Q. Mr Kelly, yesterday you told the Court that Mr Asher had told you in mid February 2005 that Gleeds Australia had been put on to the ANZ quantity surveying panel, didn't you? A. No, I think I said yesterday that I understood we would be put on the panel after acceptance, after settlement, and that's what I believe Mr Asher told me. (T 159:21 - 40) (emphasis added) ... MCINERNEY: Yes, quite, starting at the bottom I think of page 117, in fairness. So I will show the transcript to Mr Kelly opened at page 117. Q. Mr Kelly, do you see the final question on page 117 at line 50 on the left-hand side? A. I do. Q. The question was, "Now, when is it that Mr Asher, do you say, told you that you'd been appointed to the ANZ quantity surveying panel?" Do you see the answer, "Mr Asher advised me that we were on the panel". Do you see that, Mr Kelly? A. I do. Q. Then the next question, line 4 page 118 is, "When did he do that, Mr Kelly?" Your answer was, "During the middle of February". Then the question was, "You are suggesting, are you, that Mr Asher had told you that you were on the panel in the middle of February, before you'd even sent the letter of 8 March 2005 to ANZ?" Your answer was, "Correct". Do you see that? A. I do. Q. And then if you look down at page 118 at about line 35, the question was, "At no time before 13 April 2005 did you ever ascertain the criteria to be satisfied for appointment to the ANZ QS panel, did you?" And your answer was, "I asked Mr Robins what the criteria were"? A. Yes. Q. Question, "You don't give evidence in your affidavits, do you, of a conversation with Mr Robins directed to the criteria for appointment to the ANZ QS panel, do you?" And your answer was, "Not specifically, no". Then the question was, "Is it your position, as I understand it, that you were notified of appointment to the ANZ QS panel by Mr Asher in mid February 2005, is that what you were saying?" The answer was, "Yes". Do you see that? A. I do. Q. And the question was, at the bottom of page 118, line 49 or thereabouts, "And on no other occasion?" And your answer was, "Just about every conversation I had with him, I asked him about it and he confirmed each time". And then over the page, page 119, "Every conversation you had with him, you give evidence in your affidavits about every how many conversations do you say that was, Mr Kelly?", and your answer was, "It would have been three or four conversations". Do you agree, Mr Kelly, that the evidence you gave yesterday to the Court was to the effect that Mr Asher had told you in mid February 2005, that Gleeds Australia had been appointed to ANZ's quantity surveying panel? Do you agree that's what you told the Court yesterday afternoon? A. I agree that that's what it looks like I said, yes. Q. Mr Kelly, do you agree that is what you said, as distinct from that's what it looks like you said? Do you agree that is what you told the Court yesterday afternoon? A. Yes. Q. And are you changing your position this morning about that evidence, is that what you are seeking to do before the Court? A. Well, I don't believe I am changing my position. If I have miss -- misunderstood what I was saying, then my apologies." (T 159:22-T 161:9) 637A little later he was asked: "Q. Answer the question, Mr Kelly. Before 13 April 2005, had anyone from ANZ told you that you had been appointed to the ANZ quantity surveying panel; yes or no? A. No. Q. With all your years of experience as a quantity surveyor dealing with bank panels, you knew, couldn't you, that you could not make any assumption about being appointed to a bank quantity surveying panel unless you had been notified that you had been appointed to the quantity surveying panel; you agree with that, don't you? A. Yes." (T 162:25-35) (emphasis added) 638At this point, the following observations are noted: (i) In his affidavit sworn 12 February 2012, Mr Kelly's account of what Mr Asher said was that he was sure that he could get Mr Kelly onto the ANZ panel if he was an ANZ customer, especially if he had commercial loans with ANZ. (ii) In his first account in cross-examination Mr Kelly said that Mr Asher had notified him of his appointment to the ANZ quantity surveyors panel in mid-February 2005. (iii) He subsequently said in evidence that he understood "we" would be put on the panel after settlement: T 159:35-44. 639There is an inherent improbability that a person not previously a customer of ANZ would be favourably considered for appointment to ANZ's quantity surveyors panel without any information confirming the credentials and experience of the person or entity to be appointed. As at the date of the alleged conversation with Mr Asher, no verification had been provided as to who Mr Kelly was, what his qualifications were, the nature and extent of his experience, and whether the criteria utilised by ANZ in making appointments to its quantity surveyors panel had been satisfied or met. 640Based on Mr Kelly's evidence as to his knowledge of the process that has commonly been used by major financial institutions in determining appointments to a quantity surveyors panel, it is inherently improbable that Mr Kelly would have developed and/or acted on a belief or understanding that Mr Asher, a "relationship manager", whose responsibilities had no involvement in the bank's quantity surveying operations, had either the authority and/or the capacity to provide an assurance that Mr Kelly would be appointed to the ANZ panel without any formal procedure for appointment being followed by ANZ's personnel concerned with such appointments. 641Mr Kelly was asked about the procedures that were commonly followed in his experience in the appointment to a quantity surveyors panel: "Q. In your experience as a quantity surveyor before 2005, from your work at Davis Langdon Australia and subsequently, it's your understanding, isn't it, that to be appointed to a panel of quantity surveyors with the bank, first the quantity surveyor would have to express an interest in being so appointed? A. Yes. Q. And then the bank, the second step is that the bank would ordinarily request information from the quantity surveyor to form a view as to whether or not the quantity surveyor met the bank's criteria? A. Correct." (T 99:7-16) 642The holding of any such belief or understanding is especially improbable in the circumstances where no written application had been made for appointment as at the date of the alleged conversation with Mr Asher, and no validating information had been provided by Mr Kelly to anyone in ANZ as to his background, his experience or his qualifications. 643Mr Kelly knew that Mr Peter Nass was head of the ANZ quantity surveyors panel: T 117:5-10. Mr Nass worked in the city office of ANZ. Mr Asher at the time worked out of the Hornsby Business Centre: T 117:15-17. 644Mr Nass was in charge of the real estate panel for the ANZ Bank. He gave evidence of the procedure followed for the appointment of a person to the ANZ quantity surveyors panel: "HIS HONOUR: Q. Was that system in place in 2005? A. Not as structured. It was on an ad hoc basis. However the appointments were already; no one was put on the panel unless my team sanctioned it and if there was a need and a skill level required. Sorry, I am not going to answer your question very confusingly. No account manager could put a consultant on the panel unless it was sanctioned by property tech or the real estate institute department and we had a process of due diligence going through there at all times. ... BUTTON: Q. In relation to that panel how many quantity surveyors would be on that panel at one time? A. We deliberately kept the panel lean. I would say individual people, it's not the company, it's the individual person, and anecdotally six or seven possibly, but no more. That's on the QS, the quantity surveying side. ... HIS HONOUR: Q. So when people apply for positions on the panel do they answer a criteria document you provide to them or do they have to ask for that document or how does the appointment work? A. Generally speaking they would submit a letter saying they wish to be appointed to the panel. If we saw a need to be appointed on the spot, we would say all right, come in, we will have an interview. Through that interview process we would talk about all the work they have done, the type of work they have done and the clients they have acted for. From that, with the clients they have acted for, we would do some searches to see, one, the work has been done and accords with the CV and then we would implement and say yes, you are on the panel and we would normally give them a three to six months trial basis. Generally a bit longer with quantity surveying work because the jobs are a bit longer, to see if they are fulfilling our brief." (T 379:24-T 380:26) 645Mr Kelly's failure to make any formal complaint to ANZ, as discussed above, is plainly an issue to be taken into account in assessing his credibility. His failure prior to 2011 to lodge any formal or written complaint or place on the record his assertion of a promise having been breached by ANZ, especially after he became aware in July 2005 that he had not been appointed, is of significance in determining the issue as to whether a promise was ever made at all. That is one matter, amongst others discussed above, to be taken into account. 646The significance of a failure to complain "on the record" may diminish to vanishing point if there otherwise existed independent or corroborative evidence of the alleged promise, or if Mr Kelly had led cogent evidence that established circumstances that could explain why no complaint or grievance was registered where it would be expected that a complaint would be made. There was no evidence of either kind. 647I do not consider that Mr Kelly's evidence explains why he made no written complaint as to ANZ's alleged breach of promise, namely, that he took a "commercial approach", is plausible. The evidence in fact suggests his evidence is implausible. 648In his affidavit sworn on 12 February 2012 at paragraph [63] Mr Kelly stated that on or about July 2005 he found out that ANZ had not put him or the second plaintiff on its panel. He said he called Tony Robins and told him Greg Asher had said "he would get us on the panel". As earlier noted, he said he felt "stunned and immobilised" after the conversation with Mr Robins. 649He was asked in cross-examination about this aspect: "Q. And it's the case, isn't it, that you took no step following any conversation with Mr Robins to raise at all with ANZ throughout 2005 any allegation that there had been some breach of promise by Mr Asher concerning the appointment of Gleeds Australia to ANZ's quantity surveying panel, correct? A. Correct. Q. And you can't offer any explanation, can you, why it is that if you had the conversation with Mr Robins at paragraph 63 in or about July 2005 why you didn't raise it with anyone from ANZ throughout the rest of 2005, correct? A. I'm sure I would have raised it but I don't have a file note or any record of it. Q. When you say "I'm sure I would have", you have no recollection of doing so, do you? A. No." (T 252:20-33) 650He was asked at T 253:15-45: "HIS HONOUR: Q. Mr Kelly, what would you have to fear in July 2005 about raising this matter quite frankly and openly? A Nothing, your Honour. I think it was just time probably got away and by the time I got around to it Mr Asher had left. Q. Because you had already got your finance from ANZ at this stage? A. Yes. Q. Everything was moving along quite nicely? A. Yes. Q. So there's no need to be -- you weren't walking on thin ice as to defend [sic - offend?] anyone? A. I wasn't, but by the same token that works both ways. You know, if the relationship is good then it should have been a lot easier for them to actually, you know, undertake their promise without having to go into writing. McINERNEY: Q. The relationship had been good, Mr Kelly. It would have been very easy to raise it with Mr Asher, wouldn't it? A. Mmm, yes. Q. And the relationship was good throughout 2005 with Mr Asher, wasn't it? A. Until he left two months later, yes. Q. He left in September 2005, didn't he, Mr Kelly? A. Three months later. Q. You didn't raise it with him at all before he left, did you? A. Not that I can recall." (T 253:15-45) 651ANZ set out in these proceedings to prove the negative of the two issues relied upon by the plaintiff - that no oral promise was made by Mr Asher and that no email and PDF in terms of DJK-5 was sent by Mr Kelly as alleged. 652The plaintiff sought to rely upon his own evidence that he had from time to time verbally referred to the fact of the promise when speaking to employees of ANZ. Mr Kelly's evidence in this respect was relied upon as corroborating the fact of the promise having been made in January 2005. 653ANZ sought to prove the negative of Mr Kelly's account by adducing evidence from each of the ANZ employees to whom the plaintiff said he spoke and advised that Mr Asher had made the promise. Those employees and the relevant periods during which they dealt with Mr Kelly were: (i) Mr Tod Wills (September 2005 - February 2007) (ii) Mr Wayne O'Neill (mid November 2007 - July 2010) (iii) Mr George Kostov (from August 2010) (iv) Mr Ravi Shah (in relation to the meeting on 5 August 2010). 654Each of these four witnesses gave evidence disputing the plaintiff's evidence - that Mr Kelly did not refer to a promise having been made. In the notes made by each in relation to meetings with Mr Kelly, there was no reference to the alleged promise. 655I have earlier stated that having heard and seen each of the above four witnesses give evidence, I accept their evidence as both truthful and reliable evidence. 656In the plaintiff's Primary Submissions it was submitted that the Court should make a number of factual findings: Paragraph [127]. 657It was also submitted that a finding should be made that the plaintiff followed up "the request" with Mr Wills, Mr O'Neill and Mr Kostov. 658Mr Kelly's submissions, however, do not come to terms with the evidence given by those witnesses which firmly refutes his evidence that he had referred to the promise in meetings with them. 659No basis was exposed in the plaintiff's submissions that impugns the credibility of any of the above four witnesses. Acceptance of their evidence over that of the plaintiff necessarily leads to a finding, which I make, that the plaintiff did not, subsequent to January 2005, refer to or allege to any of the above four ANZ employees that the alleged promise to Mr Kelly by Mr Asher had been made. 660The consequence of that finding is that in the years 2005-2011, Mr Kelly did not raise with ANZ personnel either the alleged promise, or that ANZ had breached the alleged promise. 661If a matter of such alleged importance to Mr Kelly had become known to him in July 2010, it could reasonably be expected that he would have at least queried why his company had not been appointed. Mr Kelly's evidence in cross-examination as to why he did not go "on the record" about the matter, I find to be highly implausible. He proffered no other explanation for not writing to ANZ about the matter that he now would have this Court accept was a matter of great importance to him. 662The plaintiff's conduct subsequent to the alleged promise is inconsistent with his claim that ANZ had acted in breach of the promise. Mr Kelly, on the findings I have made, not only failed to raise with ANZ personnel ANZ's alleged breach of the promise, he, as earlier noted, continued to do business with the bank, borrowing further funds from it without any qualification or reference to the matters he now complains of in the present proceedings. Mr Kelly's own conduct in this respect after 2005 is evidence that may be taken into account in determining the primary issue as to whether a promise as alleged was made by Mr Asher and/or ANZ at all. 663By the time Mr Kelly made his first complaint about the alleged promise, he was under increasing financial pressure and was in default under the loan agreements with ANZ. The delay of over six years to raise the issue of ANZ's alleged breach of "the promise" is one matter amongst others discussed above that tells against the alleged promise.

[74]

The DJK-5 Issue 664I turn to the other matter upon which the plaintiff relied to support the making of "the promise", namely, the email and PDF - "the DJK-5 issue". 665The email DJK-5 was an important part of the plaintiff's case and it was reproduced into paragraph [2] of the Plaintiff's Primary Submissions. If DJK-5 were accepted as genuine or authentic, it is capable of corroborating aspects of a conversation said to have taken place between Mr Kelly and Mr Asher. 666The authenticity of the disputed email became an issue of central importance to both the question as to whether the alleged promise by Mr Asher was made in the terms alleged and to the issue of Mr Kelly's credibility. 667In its Outline of Submissions dated 5 July 2013, ANZ foreshadowed that it would rely upon the evidence of Mr Ghosh to prove that DJK-5 was a fabrication: at 14. 668In ANZ's Outline of Final Submissions, it was submitted that:

Mr Kelly did not send the email and PDF, "DJK-5", to ANZ: at 2.
Mr Kelly created the PDF, DJK-5, on 26 May 2011 for the purpose of pursuing a claim for damages against ANZ knowing that claim to be false, and in circumstances where the facilities were in default and a claim by ANZ for debt and possession was imminent, and was known by Mr Kelly to be imminent following ANZ's letter to Mr Kelly dated 24 May 2011: at 3.
Mr Kelly fabricated his case for the purpose of seeking to avoid the inevitable judgment for possession and debt in respect of the ANZ Business Loan, Home Loan for the Dural Property, and the Residential Investment Loan for the Blackwall Property. 669ANZ's case was that Mr Kelly gave false evidence in saying that he located the email DJK-5 and conducted an experiment on his computer between 26 May 2011 and 29 May 2011. Contrary to Mr Kelly's evidence, (summarised in paragraph [161] of ANZ's Outline of Final Submissions), ANZ contended that: "The emails retrieved from Mr Kelly's laptop indicate that the first time Mr Kelly sent the pdf, "DJK-5", to anyone was on 29 May 2011. Mr Kelly sent a copy of the pdf, "DJK-5", by email on 29 May 2011 at 11:40pm to his accountant, Mr Pratt, and stated 'My IT guy restored the files from the period I was talking to ANZ about my mortgage for the office and here is the letter I mentioned earlier'." (at [162]) 670In paragraph [185] of those submissions, ANZ submitted: "Mr Kelly did not send the pdf, "DJK-5", to ANZ until 11 July 2011. The pdf, "DJK-5", was anomalous in two respects. The first is that "DJK-5" was on the letterhead of David J Kelly & Associates notwithstanding that Mr Kelly had been using the branding of Gleeds Australia on his emails, and other correspondence, since that business commenced on 1 February 2005. The second is that the email address stated on "DJK-5", gasher@anz.com.au, was incorrect for two reasons. The first reason is that the part of the email address before the "@" sign on "DJK-5" stated "gasher" rather than "asherg". The second reason is that the part of the email address after the "@" sign on "DJK-5" stated "anz.com.au" rather than "anz.com"." 671The serious issue of claimed fabrication in relation to the disputed email DJK-5 depends, in large part, although not exclusively, upon the analysis and expert evidence of Mr Ghosh. 672Mr Kelly was on notice from at least 7 October 2011 (the date of Gadens' letter to the liquidator which was copied to Mr Kelly's solicitor), that ANZ was querying the authenticity of the alleged email. 673Mr Kelly, as earlier noted, retained Mr Towers as an expert. At the outset of the concurrent evidence of Mr Towers and Mr Ghosh, Mr Towers stated that: "I have come to this matter very recently and have had little time to get up to speed on it." (T 479:49-50) 674Mr Towers stated that he would "prefer that other persons identify relevant issues and I can comment if required": T 480:17-18. 675Thereafter Mr Ghosh was cross-examined by Ms Button on behalf of Mr Kelly: T 480-487. The cross-examination did not challenge essential matters that were fundamental to Mr Ghosh's analysis or conclusions. Mr Towers made some comments on particular matters at T 487-488 but they did not undermine the basis or substance of Mr Ghosh's evidence. 676I have earlier referred to Mr Ghosh's evidence on specific matters which I do not repeat here. They, however, are relevant in my assessment of Mr Ghosh's evidence. His evidence established a strong basis for his conclusion that the disputed email DJK-5 was not sent to ANZ on 12 April 2005 or on any other date in the 2005 year, and that the first time the PDF, DJK-5 was sent to anyone was on 29 May 2011. Mr Ghosh's evidence, which I accept, was that the disputed email was created after 20 April 2010: Report dated 7 September 2012 (Exhibit 15), at [9]. In that respect, Mr Ghosh determined that the Primo PDF software was installed on Mr Kelly's laptop on 20 April 2010 based upon the matters identified by him in paragraph 17(a) to (d) of that report. It followed that the PDF DJK-5 could not have been created on the laptop prior to that date. The conversation log established that the relevant PDF was created on the laptop. 677The relevant events leading to the creation of DJK-5 were detailed in Mr Ghosh's report at paragraph [23]. 678The document marked DJK-5 attached to Mr Kelly's affidavit sworn 12 February 2012 is a printout of an electronic document which was in the Portable Document Format. Mr Ghosh accordingly refers to it in his reports as "the PDF". 679Mr Ghosh's analysis and findings led him to conclude that the PDF which purported to have been created on 12 April 2005 was not created on that date, but was created some years later as discussed below. 680In his reports Mr Ghosh developed and refined his findings in relation to the creation of the PDF/email allegedly created on 12 April 2005 as follows: (i) In his report of 4 September 2012 his summary of findings were: (a)the PDF must have been created after August 2007; and (b)the PDF was probably created after 19 April 2010: at paragraph [3]. (ii) In his report of 7 September 2012 Mr Ghosh stated that his further examinations referred to in that report enabled him to narrow his findings of his prior report. In summary, he stated that his findings now were that the PDF was created after 20 April 2010: Report at [9]. (iii) In his report of 20 February 2013, Mr Ghosh stated that the affidavit of Mr Kelly when considered with the LNK files affected his prior findings by: (a)confirming that the PDF was created using the Sony Vaio laptop with the HP Pocket Drive attached; and (b)probably narrowing the date of creation (ie, by manipulating of the system clock) to 26 May 2011, although he stated he could not be certain of those dates because some of the evidence he would have expected appears to have been wiped. He added, " I can be certain that the PDF was created after 20 April 2010": at [76]. (iv) In his affidavit sworn on 5 June 2013 Mr Ghosh stated his findings contained in his reports on 20 February 2013 and 22 February 2013 as follows: (a)At some time, definitely after 20 April 2010 (and probably on 26 May 2011) Mr Kelly created the PDF exhibited at "DJK-5" to his affidavit of 12 February 2012. (b)The PDF was created by Mr Kelly's Sony Vaio laptop with the HP Pocket Drive attached to it. (c)To create the PDF, steps were taken as set out in subparagraphs (i) to (vi). (d)The computer clock was changed back to the real date, ie, 26 May 2011. (e)The PDF was copied from HP pocket drive to Sony Vaio laptop. This resulted in the "File Created" date for the PDF on the Sony Vaio laptop - being set to 26 May 2011. (f)The Microsoft Word document and the copy of the PDF on the HP pocket drive were both deleted. (g)The PDF on the Sony Vaio laptop was accessed on 29 May 2011, which is the "Last Accessed" date recorded in DJK-6. (h)Mr Kelly subsequently overwrote the free-space on the Sony Vaio laptop with zeros to delete evidence of the PDF being created on the Sony Vaio laptop with the HP pocket drive attached to it. 681Mr Ghosh summarised his reasoning with respect to subparagraphs 6 to (h) later in his affidavit. 682In paragraph [8] of Mr Ghosh's affidavit sworn on 5 June 2013 he explained the reasons for his conclusion that Mr Kelly created the PDF exhibited at DJK-5 of his affidavit of 12 February 2012 at some time after 20 April 2010 (and probably on 26 May 2011). 683Mr Ghosh analysed the report of Mr Towers annexed to his affidavit dated 20 February 2013. He concluded that the matters in Mr Towers report (and in the affidavit of Mr John Noller dated 6 September 2012) did not affect his prior finding: at paragraph [75]. 684Mr Kelly sought to challenge Mr Ghosh's evidence in the Primary Submissions by raising matters not put to Mr Ghosh, in particular at paragraph [39] of those submissions and in subsequent paragraphs. A submission was there made that Mr Ghosh: "... ignores the sequence of Word operation within the Event Viewer of the computer, which shows that a Word document was closed on 12 April 2005 - this being between two entries for 29 May 2011." 685The plaintiff's submission proceeded with a contention, not put to Mr Ghosh, that the only conclusion to be drawn was that the Word document in the "Event Viewer" must be the experimental version bearing date 12 April 2005. That record, it was submitted, could only have been closed on 29 May 2011 according to the "Event Viewer" stamps: at [40]. 686The submission continued that the Court could reach its own conclusions as set out in paragraph [41] of the Primary Submissions. 687As ANZ's Outline of Final Submissions at paragraphs [332]-[337] noted, and I accept, the matters relied upon were not put to Mr Ghosh. 688The plaintiff's Primary Submissions at paragraphs [32]-[83] did not seek to engage with matters that Mr Ghosh identified as supporting his conclusions. 689Those submissions, rather, sought to specifically construct an argument that Mr Ghosh's analysis ignored what is referred to as the "sequence of Word operation": at [39]. 690The plaintiff's submissions developed on this basis at paragraphs [39]-[41], and additionally contained a number of assertions upon which a submission is made that Mr Ghosh ignored a particular fact (concerning the sequence of Word) and therefore did not consider the conclusion suggested in the written submissions. 691In ANZ's response to the plaintiff's submissions on liability in Part L of its Outline of Final Submissions, ANZ submitted that the matters now sought to be relied upon by the plaintiff in paragraphs [39]-[41] of the plaintiff's Primary Submissions are misplaced on two bases: (i) That the thrust of the plaintiff's submissions was that the Court should not accept the evidence of Mr Ghosh. This submission, however, was advanced in circumstances where there has been no effective challenge to his evidence, and where no credible basis has been put forward for rejecting it: ANZ's Outline of Final Submissions at [324]. (ii) Apart from the failure to put the matters to Mr Ghosh in cross-examination, the submissions, in part, relied upon Mr Kelly's affidavit sworn 12 September 2012 at paragraph [32], but that that paragraph was not read at the hearing. 692In order to consider the plaintiff's submissions and ANZ's submissions in response, I note paragraphs [39]-[41] of the plaintiff's Primary Submissions. 693Firstly it is to be observed as noted above that paragraph [32] was not amongst the paragraphs read in the affidavit of the plaintiff dated 12 September 2012. In that respect, I refer to the transcript, 11 July 2013 at T 64-65. 694Secondly, a copy of Mr Kelly's affidavit sworn 12 September 2012 was provided to Mr Ghosh as referred to in his report of 20 February 2013 (Exhibit 16): at 4 and 5. 695Thirdly, Mr Ghosh was not cross-examined upon that affidavit, including in particular, Figure 2 in paragraph [32] (which paragraph, as noted above, was not read in the proceedings). 696Fourthly, the submission at paragraph [41] of the Plaintiff's Primary Submissions proceeded upon the basis, not established, that it does not "... take expert evidence", by a process of reasoning to arrive at the suggested conclusions set out in paragraphs 41 and (b). 697Fifthly, the submission in paragraph [41] that it would be open to the Court to conclude, on the basis of the information in the "Event Viewer" referred to in the submissions that there were in fact two PDF files - one termed the "real" PDF file and the "experimental" PDF file - is mere assertion by the plaintiff. It was not put, as noted above, to Mr Ghosh as a proposition that was open on the basis of his analyses or on any analysis. The further proposition that the PDF that was modified was the "real" PDF, again, was not put to Mr Ghosh for his comment nor used to contradict the findings and conclusions expressed by him. 698Upon consideration, the matters raised in the plaintiff's Primary Submissions do not, in my assessment, establish any basis for a contention of identifiable error in any of the analyses undertaken by Mr Ghosh or for not otherwise accepting his findings and conclusions. The matters raised by the plaintiff in the submissions to which I have referred above were matters for expert evidence not pursued with Mr Ghosh and not the subject of any evidence given by Mr Towers. There is no basis for the submissions in paragraph [41] referred to above. 699It is noted, firstly, that there is no suggestion that Mr Towers, Mr Kelly's expert, identified the issue raised concerning the "Event Viewer", or if he did, that he placed any significance upon it as suggested by the plaintiff in his written submissions. 700Further, it is not open to the plaintiff to invite this Court to accept the plaintiff's abovementioned arguments without having put the matters relied upon in submissions to ANZ's expert when called to give evidence. It is clear, as stated above, that Mr Ghosh had received Mr Kelly's affidavit dated 12 September 2012 and was therefore made aware of its contents. In those circumstances, had the plaintiff wished to raise the issues now relied upon with Mr Ghosh in paragraphs [39]-[41] of the plaintiff's written submissions, they could have been explored with Mr Ghosh, but they were not. 701I do not consider that the matters raised in the Plaintiff's Primary Submissions constitute a basis for arriving at a conclusion that in some respect Mr Ghosh's analyses was flawed. 702I have, as stated above, concluded that Mr Ghosh's evidence presented a cogent and sound analysis and I accept the conclusions expressed by him. 703Upon that basis, as previously stated, I am satisfied to the requisite standard that the email PDF DJK-5 was a fabrication. 704The consequence of that conclusion, of course, is twofold. First that no email or other record was created by the plaintiff in 2005 and sent to Mr Asher in which he contended that a promise had been made by Mr Asher. Second, the serious adverse finding as to fabrication which I have made fundamentally impugns the credibility of Mr Kelly. 705That said, the ultimate findings and conclusions which I make in these proceedings rest upon a consideration of all the facts and circumstances established in evidence referred to in the foregoing analysis.

[75]

The Issue of the Plaintiff's 2005 Notebook and the Sequence of Events Schedule (Exhibit 9) 706Mr Kelly gave evidence that during the last week of May 2013 he located a notebook from 2005 which recorded the following sequence (Affidavit of Mr Kelly sworn 6 June 2013 at [3]): (i) A conversation with Gerald Olstein on 10 January 2005 in which he said he discussed with Mr Olstein interest rates with various lenders, including the ANZ bank; (ii) A conversation that he had with Mr Asher on or about 13 January 2005; and (iii) A conversation that he said he had with Mr Asher on 3 February 2005. 707Annexure "A" to Mr Kelly's affidavit sworn 6 June 2013 included copies of pages said to have been taken from the 2005 notebook. 708In ANZ's Outline of Final Submissions it was noted that Mr Kelly had made no mention of any original notebooks from 2004 or 2005 in his affidavits sworn on 12 February 2012 or 13 February 2012: at [208]. 709ANZ also observed that Mr Kelly made reference in his affidavit sworn on 6 July 2012 to his original notebook for 2006 but made no mention of any original notebooks from 2004 or 2005: ANZ's Outline of Final Submissions at [209]. 710In ANZ's submissions it was also observed that Mr Kelly first referred to the original notebook from 2005 in his affidavit of 6 June 2013 and first referred to an original notebook from 2004 in his affidavit sworn 17 June 2013: at [210]. 711In his affidavit sworn 6 June 2013, Mr Kelly stated at 7: "On 12 February 2012 I swore an affidavit in which: a. in paragraph 47 I refer to a conversation with the defendant's Mr Asher that I said occurred on or about 7 April 2005. Now having located the notebook I've referred to above, I confirm there was more than one conversation in which Mr Asher confirmed the defendant would put my company on the QS panel, one of which having occurred on or about 13 January 2005 and another on 3 February 2005. I recall that after the second of these conversations, in which I was asked to provide more detail and background on Gleeds, I provided a series of brochures provided to me by Gleeds UK. ... b. I prepared a document on Gleeds specifically for this purpose. On 14 March 2005, I was requested by Greg Asher to provide a specific document detailing our experience on the funder's representative projects for their records only. I prepared such a document and I saved it as a PDF and provided it to Greg Asher. I cannot now recall the manner of sending this but I think it would have been sent to him by email, however due to my computer crash, all emails were lost irretrievably. Below is a screen shot from my computer, which refers to the document. [screen shot set out] I have managed to recover this document from my hard drive and a copy is annexed hereto and marked "DK-C". c. ..."

[76]

Plaintiff's Schedule of Alleged Events - A Fabrication? (Exhibit 9) 712Mr Kelly gave evidence in which he claimed that he had put together a schedule of all events that had happened. 713Mr Kelly produced a schedule of events that was marked MFI 8 in the proceedings, and later became Exhibit 9. 714Mr Kelly's schedule, Exhibit 9, includes the following entries for 13 January 2005 and 3 February 2005: Date Details Reference 13/1/05 Gerald met with Greg Asher and pick up forms for me Gerald Olstein affidavit para 8 13/1/05 Phone call from Greg Asher introducing himself. At that time I said that the reason I was looking at ANZ was because as a customer I wanted to get onto their QS panel. He said he did not know much about it but would find out. He said he did not think it would be a problem if I took out commercial loan. Apparently commercial customers are treated differently. I told him that I was expecting some large transfers over the next few weeks and I would direct them to the ANZ account instead of our Suncorp account 3/2/05 Phone call from Greg Asher requesting information on who Gleeds are. Also said would go on panel.

[77]

715It was put to Mr Kelly in cross-examination that he prepared MFI 8 first and then went looking for his original 2005 notebook: at T 374:20-40. He disagreed. He said it was prepared simultaneously. It was then put: "Q. And I suggest to you that you, having reviewed certain documents on your HP backup, certain documents from this court case that you then included within the schedule MFI 8 a version of events first and then it was only later that you went to locate the original 2005 notebook and that it was only later after you had prepared the schedule which I have described as MFI 8 that you then created and fabricated the handwritten entries which you were cross-examined about yesterday at page 28 and page 46 of the original 2005 notebook? A. That is incorrect." (T 374:32-40) 716The Court made an order for a forensic document and handwriting expert to be appointed to undertake an examination of various entries in the First Note Book dated 2004 and in the Second Note Book dated 2004 belonging to Mr Kelly with a view to determining the relative sequence in which the entries in question were written. 717Ms Michelle Novotny was appointed and examined the relevant pages. She provided an initial report dated 4 July 2013 (Exhibit A) and a Booklet to accompany the Preliminary Summary Report (Exhibit A2) dated 15 July 2013. 718In her first report Ms Novotny examined the entry on page 46 which stated: "Greg Asher send more detailed/background gleeds - panel OK." 719Ms Novotny stated in her interim report (pp 2-3) that there were five optically distinguishable writing inks on the page upon which that entry appears. These entries she said were made respectively by a black ballpoint pen ink, a different black ballpoint pen ink and a further different black ballpoint pen ink ("ink 4"). The latter entry "ink 4" was the entry extracted above commencing "Greg Asher ...". 720Ms Novotny's examinations were unable to establish conclusive findings. 721In ANZ's Outline of Final Submissions at paragraph 9 it was submitted that on the basis of Ms Novotny's evidence the Court should: "... find that Ms Novotny's evidence does not assist Mr Kelly's case because Ms Novotny's evidence is not inconsistent with ANZ's case that the entries made on pages 28 and 46 of in the 2005 notebook were a recent invention which were fabricated for the purpose of assisting Mr Kelly's case in the litigation: Ms Novotny's opinion was that the entry 'Greg ANZ... 9482 009' on page 28 of the 2005 notebook was written after the entries on page 30 with which it intersects (noting that Mr Kelly agreed that he wrote the entry 'Greg ANZ... 9482 0009' sometime after the other entries on that page, and that Mr Kelly conceded under cross-examination that Mr Asher did not in his first conversation with Mr Kelly, alleged by Mr Kelly to have occurred on 13 January 2005, confirm that Gleeds Australia would be put on ANZ's quantity surveying panel); and Ms Novotny was inconclusive as to whether the entry 'Greg Asher... OK' on page 46 of the 2005 notebook was written before or after the entries on page 48 with which it intersects (noting that Mr Kelly conceded that the entry 'Greg Asher...OK' on page 46 of the 2005 notebook was written after the other entries on that page); Ms Novotny's opinion was that the unsourced impression found on page 46 of the 2005 notebook was written after the entries on page 48 with which it intersects." 722The submissions for ANZ in relation to the matters recorded included the following: "220. When Mr Kelly came to swear his affidavit of 6 July 2012, he was very much aware about the dates concerning when he first initiated discussions with ANZ to borrow money for the North Sydney property, the Dural property and the Blackwall property. In addressing the allegation put forward in Mr Wills' affidavit about a meeting on 11 July 2006, Mr Kelly specifically had regard to his 2006 notebook and made reference to that notebook in his 6 July 2012 affidavit. 221. Notwithstanding this, Mr Kelly asserted he did not give any consideration until 2013, to looking at the original notebooks for the period 2004 through until April 2005 because he 'just didn't pick up the dates at the time', and that 'didn't pick up the dates until [his] counsel suggested [he] do the schedule and then [he] realised." 222. ANZ submits that the review of the Schedule prepared by Mr Kelly, Exhibit 9, and Mr Kelly's evidence under cross-examination in respect of that Schedule [T 16 July 2013 at 372.29-374.6] demonstrates that Mr Kelly's evidence about locating entries at pages 28 and 46 of the 2005 notebook is false, and further permits the Court to find that the entries at pages 28 and 46 of the 2005 notebook are a fabrication which were added to the 2005 notebook after Mr Kelly had typed up the Schedule, Exhibit 9. ..." 723Paragraph [222] of ANZ's Outline of Final Submissions then set out the evidence of Mr Kelly at T 374:27-40 and T 372:29-374:6. 724ANZ submitted that the circumstances in which the Schedule of Events (Exhibit 9) came to be prepared in June 2013 are sufficiently suspicious of themselves, having been prepared by him approximately nine months after the allegation of fabrication of DJK-5 had first been raised in proceedings in September 2012. It was submitted that this would permit the Court to find that Exhibit 9 was another recent invention, and was created by Mr Kelly for the purpose of "corroborating" his claim: at [224]. 725ANZ submitted that Mr Kelly concocted the Schedule and then added entries to his 2005 notebook, at pages 28 and 46, and the unsourced impression on page 46 of his 2005 notebook, to give the appearance of a contemporaneous note of phone conversations with Mr Asher on 13 January 2005 and 3 February 2005: at [227]. 726ANZ identified the following matters in support of its submission that the notebook entries made in Mr Kelly's 2005 notebook at pages 28 and 46 were fabricated, and the Schedule was another "recent invention created by Mr Kelly for the purpose of 'corroborating his claim': at [224]: (i) Mr Kelly made no mention of any original notebooks from 2004 or 2005 in his affidavits sworn 12 February 2012, 13 February 2012 or 6 July 2012. (ii) The Schedule, now Exhibit 9, was only prepared by Mr Kelly in June 2013, nine months after the allegation of fabrication of the purported email DJK-5 had been raised in proceedings in September 2012. (iii) The Schedule, which commences on 25 October 2004 and concludes with the entry dated 13 April 2005, set out a number of events with date references. It was said it would be highly improbable that the Schedule would have been prepared without Mr Kelly having consulted his 2005 notebook: at [225]. (iv) If Mr Kelly had not consulted his 2005 notebook until after he had prepared the Schedule, Exhibit 9, it was unbelievable that he would have identified the same dates, 13 January 2005 and 3 February 2005, in his Schedule (being dates indicated in the 2005 notebook) as the date on which he spoke to Mr Asher about the ANZ "promise": at [226]. (v) The Schedule, Exhibit 9, provides a reference to source material for most of the entries contained in it. There are no sources identified for the disputed entries made on 13 January 2005 and 3 February 2005: T 373-4. (vi) It was only after Mr Kelly prepared Exhibit 9 that he then turned to creating and fabricating the handwritten entries at pages 28 and 46 of the original 2005 notebook (denied by Mr Kelly): at T374:30-40. 727ANZ's primary submission in respect of the 2005 notebook, as noted above, was that Mr Kelly concocted evidence by adding the following entries into his 2005 notebook some time after the surrounding entries, and in all likelihood at some time in 2013 after Mr Kelly prepared the Schedule, Exhibit 9, to corroborate his case against ANZ: (i) The entry on page 28 of the 2005 notebook starting with "Greg ANZ" and ending with "9482 0009". (ii) The entry on page 46 of the 2005 notebook starting with "Greg Asher" and ending with "- panel OK"; (iii) The unsourced impression on page 46 of the 2005 notebook. 728In the alternative, ANZ submitted that Mr Kelly's case is not established on his evidence which was: (a) unreliable; (b) implausible; and (c) inherently unlikely: Outline of Final Submissions at [3] and [4]. 729In the plaintiff's Reply Submissions, it was submitted: "69 The ANZ Bank gives a detailed case theory in paragraphs 222-227 which although clever is incorrect and is denied. The plaintiff submits that it is entirely plausible that the plaintiff, while running an office, and dealing with multiple directions hearings and interlocutory applications since September 2012, would have had limited time to prepare in a focused way for the proceedings until a few weeks beforehand and only then, with the pressure of an impending hearing, turned his mind to the task at hand and in doing so, located and actually read through the notebooks and observed the relevant entries."

[78]

Conclusions On Exhibit 9 730Mr Kelly's evidence established that in early 2005 he dealt with Mr Asher, in particular, from January 2005 (when he said he collected forms from him). 731The dealings between Mr Kelly and ANZ having commenced in January 2005, there is no rational explanation as to why Mr Kelly would not at an early stage of these proceedings have examined his 2004 and 2005 notebooks and having done so make reference to relevant entries for inclusion in his primary affidavits of 12 February 2012 and 13 February 2012, or at the latest, in his affidavit of 6 June 2012. 732Mr Kelly's first reference to his 2005 notebook was not made until he made his affidavit on 6 June 2013, some eight years after the relevant events, that is, the reference to an entry dated 3 February 2005. 733The fact remains, however, that he now seeks to put forward an entry appearing on page 46 of his 2005 notebook as a contemporaneous note and as corroborative evidence, namely, an entry commencing "Greg Asher" on the page of the notebook dated 3 February 2005. 734The 2005 notebook had not been misplaced. It, like his other original notebooks, was kept in his office at North Sydney, a place to which he had daily access. 735As indicated earlier, it was contended that the relevant chronology of events indicates that Mr Kelly would have been aware that he had dealings with ANZ reaching back to January 2005, a period he said that he was concerned to set up an arrangement with ANZ for his appointment to its quantity surveyors panel. There is no plausible explanation for the delay before he filed his affidavit sworn on 6 June 2013. 736The evidence given by Mr Kelly in cross-examination in relation to the preparation of Exhibit 9 raises doubts as to the veracity of his evidence. I refer in particular to his evidence given on 16 July 2013 at T 374:27-40 and at T 372:29-T 374:6. There, he stated that he prepared the Schedule, Exhibit 9, in about June 2013 before he located his original notebooks for the period 2004 up to April 2005. If that evidence was true, then it is extraordinary that he was able to make the entries for 13 January 2005 in respect of the phone call from Greg Asher and the entry on 3 February 2005 in relation to a further call from Mr Asher in which entry Mr Kelly suggested Mr Asher said "... also said would go on panel". He did not indicate in Exhibit 9 in relation to "Reference" the basis upon which he was able to construct the wording for each of those two entries. 737Having earlier given evidence at T 374 that he prepared his Schedule of Events, Exhibit 9, in about June 2013 before he located the original books for 2004 up to April 2005, his later evidence was contradictory. He was asked: "Q. And is this correct, that you provided the schedule MFI 8 to Ms Button before you located the original 2004 and the original 2005 notebooks? A. No, it's not." (T 373:23-25) (emphasis added) 738He was then asked as to when, as part of the process of preparing the Schedule, he located the original notebooks for 2004 and 2005. His answer, somewhat surprisingly, was: "It would have been simultaneously." 739He could give no explanation as to why he had not put a reference to his 2005 notebook (as the source) in the appropriate column in the Schedule of Events. In relation to that aspect he was asked: "Q. And do you agree that it is the date entry 13 January 2005 contained within MFI 8 which is the relevant date entry for page 28 of the original 2005 notebook? A. I agree. Q. To which you were taken in evidence yesterday? A. I agree. Q. And do you agree that it is the date entry 3 February 2005 which is the relevant date entry for page 46 of the 2005 notebook to which you were taken in evidence yesterday? A. I agree. Q. You cannot offer any explanation why it is that the reference column in the schedule MFI 8 does not contain any reference to the original 2005 notebook? A. No, I can't." (T 372:41-374:6) 740A finding that evidence has been fabricated is, of course, an extremely grave one. Such a finding may only be made on the basis of cogent evidence which admits no other rational explanation. The circumstances to which I have referred throws significant doubt upon the authenticity of the entries in question in the 2005 notebook. 741Having considered this aspect of the proceedings, I consider that I should resolve the disputed issue as follows. 742In the circumstances, including the very late production of the entries in the 2005 notebook by Mr Kelly, the circumstances concerning the two entries in question (13 January and 3 February 2005) are highly suspicious. I am not satisfied that the evidence relied upon by Mr Kelly establishes, on the probabilities, that the entry on page 46 of the notebook, namely, 3 February 2005, was made on that date. However, in light of the limited conclusions of Ms Novotny I do not consider the evidence is sufficiently cogent for a finding of fabrication of those entries to be made. 743That said, I am not satisfied that the words "panel OK" provides sufficient corroboration for the making of the alleged promise by Mr Asher, as pleaded in the Statement of Claim. Mr Kelly had been in the industry for a long enough period to have appreciated that the simple indication by a relationship manager of "OK" could not be taken or relied upon as creating a binding obligation on ANZ in the limited circumstances known about Mr Kelly's professional experience and background (and of his company's history and performance) as at 3 February 2005. 744I have earlier referred to the need for caution where a cause of action is dependent upon proof of spoken words. I am not persuaded that the words "panel OK" are sufficiently clear and unambiguous to establish a consensus had been reached between Mr Kelly and ANZ as to constitute a binding contract. Those words are to be considered in the context of the whole of the evidence. Had Mr Asher made a promise, one would expect that a note to that effect would have been written in terms saying so. That was not done in January-February 2005, nor as stated above, was any written record created by Mr Kelly of any such promise before 2011.

[80]

Conclusions on ANZ's Cross-Claim 749Finally, in ANZ's submissions on its cross-claim it was submitted that ANZ was entitled to the orders sought for the debt owed in respect of each of the facilities as specified therein and additionally that it was entitled to the orders sought for possession of the Dural property, the Blackwall property and the North Sydney property. 750ANZ pleads and relies upon its entitlement in the above respects by reason of default under the facilities, and mortgages securing them, such defaults on the evidence in the proceedings arising from the plaintiff's failure to pay as required the amounts due and payable under the facilities. 751Additionally, since the filing of the Statement of Claim, the ANZ Business Loan has expired and the full amount has become due and payable. 752ANZ relies upon Notices of Demand and statutory notices issued to Mr and Mrs Kelly the act of non-compliance with those demands. 753The Defence to Cross-Claim was filed on 25 November 2011. A number of grounds of defence are interrelated to the issues determined above arising on the Statement of Claim. There is no issue raised as to the facts concerning the amounts loaned, applicable conditions as to the plaintiff/cross-defendant's obligation to make payment in accordance with the loan conditions or as to the defaults pleaded and relied upon by ANZ. There may arise a need for the evidence on such matters to be updated. I will provide below for directions in respect thereof. 754Finally, in ANZ's Amended Defence filed 27 September 2012 a defence was pleaded under s 82(2) of the Trade Practices Act 1974 (Cth) and s 14(1) of the Limitation Act 1969 that the plaintiff's claim was statute barred. In light of the determination that no contract or promise as alleged was made, the issue of the enforceability of any contractual obligations pleaded by the plaintiff do not arise. Accordingly, it is unnecessary to say anything further. 755I will deal with the making of final orders below.

[81]

PART M - ORDERS AND FURTHER DIRECTIONS 756At the outset of the hearing of the proceedings, liability issues were identified for the purpose of setting a program for the hearing. The hearing proceeded upon the basis that I would determine: (1)In the plaintiff's case, the following issues: (i) The alleged agreement (ii) The issue of reliance (iii) The issue of causation (2)In ANZ's case on its cross-claim, the following issues: (i) The loan agreement/mortgages (ii) Default (iii) Orders as to the debt claimed and ANZ's claim for possession 757There remains for consideration the issue as to whether ANZ seeks a determination upon Ground 18 of its Amended Defence (the "reflective loss" principle), in light of the conclusions set out above. 758To the plaintiff's claim seeking damages based upon alleged breach of contract, ANZ raised a defence to any entitlement of Mr Kelly to claim damages based upon the reflective loss principle: ANZ's Outline of Submissions at [17]-[19]. This ground of defence was further addressed in ANZ's Outline of Final Submissions at [277]-[281]. 759The question arising from Ground 18 accordingly was whether the damages claimed in these proceedings is, as a matter of substance, reflective of Lucrum Consulting's loss. 760ANZ has submitted that Mr Kelly has not suffered any loss which is not the subject of the "reflective loss" principle. In this contention it was noted that the Court dismissed the claim by Lucrum Consulting on 5 April 2012. 761Ground 18 of the Amended Defence accordingly raises a discrete issue. Should ANZ seek that there be a determination upon that ground, I propose to give such directions as necessary for the plaintiff to file any written submissions on a strict timetable that will ensure a determination can be made upon that ground on an expedited basis. 762I propose to give any further directions in relation to the cross-claim as required, including a direction for the filing of any additional evidence with respect thereto. 763I propose to list the proceedings in relation to: (i) Final orders, in particular, those required to give effect to this Judgment. (ii) Costs. (iii) Any other ancillary orders.

Kelly v Australia and New Zealand Banking Group Limited

At a glance

Court

Decision date

Before

Source

Judgment (83 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (6)