Mr Sammar B Mandhan
56 Mr Mandhan is currently unemployed. Mr Mandhan said that he and his wife went to Peter Kittle Toyota at between 4.40 and 4.50 pm on 19 March 2016. They first saw Mr Shane Foster who was a sales representative. Mr Foster showed them a small mid-range car which was a Toyota Corolla. Mr Foster then took Mr and Mrs Mandhan to see Mr Jensen. This was done in response to a statement by Mr Mandhan that they were looking to buy under finance.
57 Mr Jensen told Mr and Mrs Mandhan that he could not tell them at that point whether or not a loan to them by Toyota Finance would be approved. He asked about Mr Mandhan's income. Mr Mandhan showed him a copy of his payslip. Mrs Mandhan said that their expenses were in a range of between $2,600 and $3,300 per month.
58 Mr and Mrs Mandhan signed the contract for the new motor vehicle. Mr Mandhan claims that he was told that the contract was only an initial document which gave Peter Kittle Toyota permission to access the car he wanted and how much finance they were looking for. Mr Jensen obtained private details from Mr Mandhan. Mr Mandhan had signed a privacy statement and consent form.
59 Mr Mandhan said that Mr Jensen had a finance checklist which he went through. The document was tendered and became exhibit A3 (Finance Checklist). Mr Jensen asked Mr Mandhan whether he owned property, rented property or both. Mr Mandhan said that he rented property so Mr Jensen circled "that document" and said that Mr Mandhan needed "to bring the original copy of this document as well so that we can have a copy in the system". The third matter in the Finance Checklist is as follows:
• IF RENTING - Current Rental Agreement or Rent Receipt.
60 Mr Mandhan said that he told Mr Jensen that he had only been renting his existing property for one year and one month. Mr Jensen said that in those circumstances he needed to provide the previous address and name of agent for the property Mr and Mrs Mandhan had previously rented.
61 Mr Mandhan said that there was a discussion about expenses and that Mr Jensen said that rather than a range, Mr and Mrs Mandhan had to identify a single figure. They identified a figure of $2,850 per month. Mr Jensen said that the figure should represent the average expenses for the last three months.
62 Mr Mandhan said that Mr Jensen told them that they needed to check their banking records and that they could provide the information on a different day. Mr Jensen gave them an income expenses form and said that they should "fill it up" and give it back to him.
63 Mr Mandhan subsequently emailed his payslip to Mr Jensen.
64 On 21 March 2016, Mr Jensen sent an email to Mr Mandhan advising him that the loan had been approved, although it required a $1,000 deposit for the approval to stand. Mr Mandhan responded almost immediately saying that "I will pay $1000 next week by the 30th of this month". Mr Mandhan spoke to Mr Jensen on the telephone and Mr Jensen told him that they, that is Mr and Mrs Mandhan, were meant to submit the required documentation within 14 days so that the loan could be processed and full approval could be given.
65 Mr and Mrs Mandhan met Mr Jensen on 26 March 2016. He asked some questions about the income and expenses form. Mr Mandhan does not have a copy of the income and expenses form. That was given to Mr Jensen. He said that in addition to giving that document to Mr Jensen, he gave Mr Jensen the original copy of the lease agreement and his citizenship certificate. Mr Mandhan tendered his "Lease Renewal - Residential Tenancies Agreement" (exhibit A8) and his citizenship certificate (exhibit A9). After providing these documents to Mr Jensen, Mr Jensen told Mr Mandhan that the loan was now approved unconditionally.
66 Mr Mandhan paid the deposit on 30 April 2016. Mr Mandhan and his wife went to Peter Kittle Toyota on 6 May 2016 and met Mr Krooglik. They told Mr Krooglik that they no longer wished to purchase the Toyota Corolla and that they had seen an advertisement on the television showing a special offer for the RAV4. Mr Krooglik told Mr Mandhan that if his loan was not approved for the higher amount, then he stood to lose half of his deposit. Mr Mandhan said he was unconcerned about that. Mr Mandhan provided further payslips in relation to his employment. Mr Krooglik said that he would take Mr Mandhan's details. He asked Mr Mandhan whether there were any changes in his details. Mr Mandhan said that there were no changes in his expenses and he told Mr Krooglik that he was residing in the same place. Mr Krooglik said that he would make the application and advise Mr Mandhan of the result. On 7 May 2016, Mr Mandhan was advised by Mr Krooglik that the loan had been approved. They made arrangements to collect the vehicle on 27 May 2016 and to complete the relevant paperwork. Mr Mandhan identified certain payslips that he sent to Peter Kittle Toyota.
67 On 27 May 2016, Mr Krooglik sat down with Mr Mandhan and took him through various documents. Some of the documents apparently wrongly referred to the Toyota Corolla and in one case to Mrs Mandhan (Pankajarra Mandhan). Mr Krooglik directed Mr Mandhan to the Loan Offer - Fixed Rate Loan (Loan Agreement) and the booklet of Terms and Conditions. Mr Mandhan said that he would read the booklet himself. Mr Mandhan said that Mr Krooglik was very clear in mentioning the information and reiterating that Mr Mandhan needed to read the booklet.
68 Mr Krooglik took Mr Mandhan through the loan application signed by Mr Mandhan and dated 27 May 2016 (exhibit A21). He took Mr Mandhan through the document. Mr Mandhan said the following:
He actually fingered and he was taking me through the whole thing from the start.
69 There was a discussion about the obligation not to submit any false documents. Mr Mandhan identified the booklet which became exhibit A22.
70 Mr and Mrs Mandhan then took possession of the motor vehicle.
71 Mr Mandhan said that they paid the deposit, took possession of the motor vehicle and started making repayments.
72 Mr Mandhan claimed that Mr Jensen, on 21 March 2016 when he entered details into the system, changed the details with respect to his accommodation status to "boarding with parents".
73 Mr Mandhan claims that his expenses of $692 per week were changed to $452 per week. Mr Mandhan contends that the monthly figure is in the order of $3,110 when the weekly rental of $260 is taken into account. He denies that he asked Mr Krooglik to change the expenses from $692 to $452. Mr Mandhan gave evidence of his qualifications. He said that he has completed an MBA, a Master of Accounting and he has worked at a firm of a chartered accountant. Mr Mandhan said that his mother had never visited Australia.
74 In September 2016, Mr Mandhan was diagnosed with a medical condition. According to a medical report, Mr Mandhan had a very large left hydrocele which developed over the last six months. He reported to his medical practitioner that he was experiencing some pain in the left iliac fossa region "in the last about 4 weeks which has made seek help". He was admitted to the Lyell McEwin Hospital in October 2016 after his condition escalated. It was suggested that he have an operation done privately which would cost in the order of $3,000.
75 Mr Mandhan said that from that point onwards, his wife started performing massages on him. She had done two courses, one in 2015 and one in 2016, to "start her practice" and then she "got" registered into the Massage Association. Mr Mandhan said that in addition, they were planning to start their therapeutic formula to launch into the market. His wife obtained a Doctor of Philosophy in 2008. Mr Mandhan said his wife knows how to use different herbs for making different things. She knew how gemstones may be used and she knows how to make a remedy with gemstones. Mr Mandhan produced a number of gemstone identification reports of Ramesh Kumar in India, all bearing a date in 1996 and relating to rubies and sapphires. These are the gemstones which Mr Mandhan said were their assets and they were using (or intending to use) to create income to start "our other income generation activities". Mr Mandhan said that the gemstones were very valuable and the gemstones were used to treat Mr Mandhan's illness or injury. They were ground down into ash and have been effectively consumed.
76 Mr Mandhan produced a consolidated invoice from 1 November 2016 to 28 October 2018. It is from his wife and it is dated 6 November 2018. Mr Mandhan agreed that this was a bill that his wife had delivered to him and included gemstone infused oil massage for 730 days at a price of $5,190,300. In addition, there is a charge for full body herbal massage for 730 days of $57,966 making an overall total of $5,248,266. Mr Mandhan said that this was surgery that he could not get done because of the pre-payments he was making to Toyota Finance. Mr Mandhan said that his wife used to give him a massage for seven hours every single day. The unit price is said to be $395 for a 20 minute massage using the gemstones which had been reduced to ash and infused in some way with herbal massage oil (exhibit A35).
77 Mr Mandhan also produced another document which seemed to be in similar terms. This document was, according to him, his wife's rough estimation of what could be the estimated value of the gemstones that she had used in infusing into the oil. That valuation was a total of $600 million, being $594 million for 60 rubies and $6 million for 15 sapphires.
78 Mr Mandhan produced a document entitled "CCC Compliance Checklist" dated 30 May 2016 and signed by Ms Brooks. He said in his evidence that Mr Krooglik completed this document in front of him on 27 May 2016. Mr Mandhan tendered a document entitled "How is My Equifax Score Calculated?". This document indicates that it has a relationship with Veda and Mr Mandhan referred to the ATLAS computer program document which said that he had a Veda score of 498. This put him in the group of people between 400 to 500 and classified as bad. Average is 550.
79 Mr Mandhan was informed by Mr Foster on 9 May 2016 by SMS message that the loan had been approved.
80 Mr Mandhan said that his wife was the actual owner of the gemstones, but that she had given them to him for the purpose of sale and "to maintain it". He gave the gemstones back to her and told her to do what she had to do and he would make sure that she was repaid for them. All of the gemstones have gone. They were reduced to ash and used in herbal oil in 2017, 2018. It seems that Mr Mandhan's hydrocele developed into a epididymal cyst.
81 Mr Mandhan produced pages from his bank account at the National Australia Bank for the period from 24 November 2017 to 23 January 2018. The document is partly redacted. Mr Mandhan said that he and his wife experienced extreme financial hardship and that for a period of two months, his expenses on food were only $80.76 which is $1.34 for two persons for a day or 67 cents per person for a day. Mr Mandhan was not working at this stage and he was receiving treatment from his wife. Mr Mandhan said that the gemstones were reduced to ash between 2 November 2016 and December 2017. He said that his wife's health was deteriorating as well. Mr Mandhan put forward various documents in support of his position of financial hardship and medical problems. Surgery was performed on Mr Mandhan on 28 August 2018 to alleviate his medical condition.
82 Mr Mandhan said that he contacted Toyota Finance about his financial hardship in about January and February 2018. He said that this was the first time he went through his documents and he saw the statement that he was "living with parents". After this, he sent a complaint to the Complaints Department and he received a response on 3 August 2018. The Complaints Department at Toyota Finance interpreted his complaint as a complaint that he was misled into purchasing an extended warranty, a complaint that the finance manager misrepresented his employment status and his living circumstances and a complaint that he was not offered loan payment protection insurance. The response to Mr Mandhan's complaint states the following under the heading "Living circumstances":
You stated the Business Manager at Peter Kittle Toyota misrepresented key information such as your employment status and living circumstances to attain a favourable decision on your application for finance.
TFAL confirms you have provided a tenancy agreement to support your claims regarding your living conditions at the time of purchase. Please find attached a copy of the loan application presented at the time of purchase. TFAL notes you have signed the application declaring the information provided in the application to be accurate and that false information has not been intentionally provided to enable you to obtain credit.
83 The response also said under the heading "Insurance eligibility" the following:
You may only apply for Toyota Insurance Finance Protection policy at the commencement date of your finance contract. One of the conditions to be eligible to apply for this insurance is, at the commencement date you must be in permanent and gainful employment for a minimum of 16 hours per week, and have no knowledge that your permanent and gainful employment is to be terminated when you apply for your finance contract.
Based on the information you have provided, you [sic] employment status was not permanent therefore you would not have been eligible to apply for a Toyota Insurance Finance Protection policy at the time of purchase.
84 Mr Mandhan interpreted the first of these passages as supporting his case that he gave the rental agreement to Mr Jensen on 26 March 2016. I will come back to address this point and also to indicate the relevance of the second passage set out above.
85 Mr Mandhan then went to the Financial Ombudsman Services.
86 Mr Mandhan gave evidence with respect to the Cross-Claim. By way of background, I note that in Mandhan v Toyota Finance Australia Limited [2019] FCA 2124, I said the following (at [5]):
Mr Mandhan raised two matters. First, he contended that Toyota Finance could not bring their cross-claim seeking payments under a loan agreement because it had agreed not to seek payment of the required monthly repayments until Mr Mandhan had obtained employment. That agreement was reached during a telephone conversation on 27 September 2018 between Mr Mandhan and an employee of Toyota Finance. The agreement means, so Mr Mandhan contends, that he had not failed to make monthly repayments under the loan agreement and Toyota Finance is unable to bring enforcement proceedings against him. The response by Toyota Finance assumes that the conversation alleged by Mr Mandhan took place. Toyota Finance submits that an agreement to cease making direct debits on his account is quite different from an agreement not to enforce Mr Mandhan's obligation to make monthly repayments. In order to make an order for summary dismissal or judgment of a claim, the Court must be satisfied that there is no reasonable prospect of the proceeding being successful (Federal Court of Australia Act 1976 (Cth), s 31A). I agree with the submission made by Toyota Finance that the position is not sufficiently clear for an order to be made for summary dismissal of judgment of its cross-claim and the matter Mr Mandhan raises is a matter for trial.
87 Mr Mandhan said in evidence that what he was told was that Toyota Finance would put his "payments on hold till you get back to work. Till then you don't have to make any payments". He also appeared to suggest that he was told by the person to whom he spoke (one Ankit Gulati from the Complaints and Resolution Department) that he would revoke the default letter which had been issued to him.
88 Mr Mandhan said that after that in the month of March, he received a letter of default from Thomson Geer. A little later in his evidence, Mr Mandhan stated quite clearly that Mr Gulati had said that he was revoking the default notice. He said that he did not receive a default notice "from September onwards" and in his mind that confirmed what he had been told by Mr Gulati. The telephone call is recorded on the USB stick containing recordings of various telephone conversations (exhibit A58). There are seven or eight telephone calls on the USB and Mr Mandhan invited me to listen to the telephone call on 27 September 2018 and the telephone call on 24 August 2018.
89 On 4 March 2019, Thomson Geer on behalf of Toyota Finance sent a default notice to Mr Mandhan dated 1 March 2019.
90 With respect to his claim for loss and damage, Mr Mandhan said that his wife did two courses in massage, one in December 2015 and the second in July 2016. In February/March 2016, Mr Mandhan's wife asked him to do a feasibility study for the project with respect to sugar and also for his wife's other business in starting up health and wellbeing centres in Australia and India. He said that at that time, they had already started "the process of starting our income generation activities". At about this time, Mr Mandhan's wife valued the gemstones.
91 Mr Mandhan gave evidence that there was fraud and deceit on the part of not only Mr Jensen and Mr Krooglik, but a number of other persons in Toyota Finance, including persons who had approved the loan and Ms Regina Brooks. He said that these persons worked as a team to cause damage to him and that they intended to cause damage to him. He suffered financial hardship and over a period of two months, he and his wife had only 67 cents per day to spend on a meal. This was all due to the "deliberate and wilful actions of TFL [sic] staff and the business manager".
92 Mr Mandhan said that he told Mr Jensen that he was renting and Mr Jensen asked him to submit the rental agreement which he did on 26 March 2016. Mr Mandhan said that any approval given on 21 March 2016 was only a conditional approval because the lending assessors only had part of the information. They did a preliminary assessment based on the benchmark amount and they used a figure of $2,300 per month. The monthly expenses based on an average for 90 days was $3,120. Mr Mandhan contended that Mr Krooglik knew that Mr Mandhan's rental agreement was "in the system" and that he nevertheless changed the monthly amount from $692 to $452. Mr Mandhan contended that Mr Krooglik knew that he had made a "fraudulent representation" when he told Mr Mandhan that his loan had been approved. Mr Mandhan contended that the "credit assessor" (i.e., lending assessor) knew that the information upon which he approved the loan was false.
93 This then was the evidence-in-chief of Mr Mandhan. He was then cross-examined by counsel for Toyota Finance.
94 Mr Mandhan said that for personal reasons, he changed his name from Cecil Thomas to Rayhan Arvin Thomsan in May 2014. He said that his personal reasons were between himself and his wife. He changed his name from Rayhan Arvin Thomsan to Sammar B Mandhan on 6 February 2018. Mr Mandhan's birth name was Cecil Thomas. The change of name certificate records the surname at birth or on adoption and given names at birth as "unknown".
95 Mr Mandhan agreed that he was having financial difficulties as at 6 February 2018. He agreed that he received a default notice from Toyota Finance in February 2018 and that it was not until October 2018 that he told Toyota Finance of his change of name. A little later, he suggested that his wife had put aside funds to effect the change of name and that she was the one who felt that it needed to be done. A little later again, he said that health difficulties were why he changed his name. His evidence was confusing and unconvincing.
96 He said that financial difficulties played no part in his decision to change his name in 2014.
97 Mr Mandhan said that he moved to Australia towards the end of March in 2002. Mr Mandhan said that he had a Bachelor of Commerce from the Andhra University in India which he obtained in 1999. He enrolled in Australia in a Master of Accounting. He completed that qualification. He said that he did various periods of employment involving accounting and bookkeeping.
98 Mr Mandhan agreed that he calculated the monthly expenses of himself and his wife between November 2015 and March 2016 at $3,120 per month. He explained the relatively high expenses on the basis of the expenses incurred in connection with the feasibility studies and investigations into the proposed projects. Mr Mandhan agreed that he could calculate the repayments which would need to be made and whether he and his wife could afford to make them for the finance on the motor vehicle. He said that they had no issues in making payments until December, and then there were health issues. Mr Mandhan said that he did his simple calculations and understood that if his loan was approved, then he could make the repayments.
99 Mr Mandhan agreed that one of the losses he was claiming related to the gemstones that his wife inherited. They are the basis for the invoices totalling $605 million that he seeks to rely on for the purposes of this proceeding. He said that his wife had had the gemstones for quite a long period of time. She did an assessment of the gemstones in 1996. As at February 2016, Mr Mandhan and his wife were proposing to sell one of the gemstones which his wife valued at $2 million. They had spoken to various auction houses. They were not interested in sending the stones interstate. Mr Mandhan, when asked whether his wife sold him the gemstones in 2016, said that his wife handed him the position because they were in a joint partnership and they wanted to do everything "as per legally". He said that his wife transferred the gemstones onto him for the purposes of sale. At one point, he said the rubies were at 730 carats, then he said that he was confused and he could be right or he could be wrong. It was suggested to him that a 15 carat stone was a very large stone and he agreed with that. Mr Mandhan referred to a stone on his person which was worth $50,000. Mr Mandhan said that his wife had always told him that the gemstones were very valuable and had "medicinal properties and values as well". He was asked about his evidence that the gemstones were worth in the order of AU$1.5 billion. As I understood his evidence, it was that this was an approximate value, but represented what they believed the value to be. Mr Mandhan eventually agreed with the proposition that when he walked into the Peter Kittle Toyota dealership in March 2016, he believed that he had gemstones worth $1.5 billion. Mr Mandhan said that he valued the lost business opportunities at $600 billion. Mr Mandhan agreed that in December 2016, he and his wife were planning to sell one gemstone for $20 million which after 40% commission had been deducted, would yield a net amount of $12 million to his wife and himself. Mr Mandhan was asked why he could not have afforded the surgery in late 2016 at a cost of $3,000 to $4,000 in light of the yield of $12 million from the sale of a single gemstone. He said that because of his health issues, he could not travel to Melbourne or Sydney to sell the stone. He then gave some very confusing evidence about a conversation he had had with a jeweller about the sale of the gemstone to that jeweller. I do not accept Mr Mandhan's evidence. I consider that it is untrue. I do not believe his account as to the existence or value of the gemstones.
100 Mr Mandhan was taken to an affidavit he affirmed on 28 November 2018 in which he claimed as an item of loss, the following:
Unpaid dues to be paid to the therapist for the continuous service provided to maintain the health of the deponent, which equates to $1,899,999.
The therapist referred to was Mr Mandhan's wife. She had rendered a "consolidated invoice" approximately three weeks earlier on 6 November 2018 for massages totalling $5,248,266. Furthermore, there is an "invoice" for $600 million also dated 6 November 2018 . Mr Mandhan said that when he affirmed his affidavit, he based his figures on "a hunch" and he forgot to look at the invoices that had been made. I do not accept that evidence. In my opinion, it is untruthful.
101 Mr Mandhan was asked about the redactions he had made to his bank account statement from the National Australia Bank (NAB) for the period between 24 November 2017 and 23 January 2018. The two page bank statement shows total credits of $7,652.02 and total debits of $7,484.36. The entry details have been redacted. It was put to Mr Mandhan that he had deliberately redacted the entries so that his evidence that he was living on $1.47 per day was not contradicted. I did not find his evidence about the redactions to be satisfactory. He did not provide a plausible explanation for the redactions. He was taken to the NAB statement for the period 24 January 2018 to 23 March 2018 and he agreed that he had produced that document without any redactions. He was taken to an ANZ Bank payment summary and it was put to him that there were no redactions of any of the transaction details. Mr Mandhan agreed that the only redactions to the bank statements were to the NAB statement for the period 24 November 2017 to 23 January 2018. Mr Mandhan was asked whether he agreed that by identifying only the NAB account and redacting the receipts of $7,652.02 and not identifying his wife's account, he has presented a misleading picture. He disagreed with that proposition. Counsel for Toyota Finance called for unredacted copies of the NAB statements and the bank statements of Mrs Mandhan for the period 24 November 2017 to 23 January 2018.
102 Mr Mandhan agreed that he had signed a contract to purchase the Toyota Corolla on 19 March 2016 and that Mr Jensen had told him on that day that he could not say whether or not the loan from Toyota Finance would be approved. Mr Mandhan's evidence was that Mr Jensen told him at the time that he was just signing a sales contract. It gave Peter Kittle Toyota or Toyota Finance the opportunity to do a finance check and come back to him and indicate its position. Mr Mandhan said that his belief was that when he signed the sales contract and the privacy document "it only gives permission to Toyota Finance to verify whether they can give me finance or not". Mr Mandhan said that the sales contract did not oblige him to purchase the vehicle and he referred to the sales contract itself. He then said that Mr Jensen told him that the signing of the document did not give rise to any obligation. I do not accept Mr Mandhan's evidence on this topic and, in particular, the following evidence given by Mr Mandhan:
Can I suggest to you that Mr Jensen said no such thing to you as, "You don't have to worry, because it's only an initial document which gives Peter Kittle Toyota permission to assess what car and how much finance". He never said that, did he?---He said that. Well, that's how he got me signing this document. He said, "This is what it gives". He said, "This document needs to be signed so that you will - you're giving us permission to do a credit check and assess your credibility".
(See exhibit A1, the sales contract.)
103 Mr Mandhan said that Mr Krooglik on 30 March 2016 in his office responded to a question by him about finance protection insurance by saying that Toyota Finance was not a bank and "more over we are able to offer better rates than bank". He said that on 27 May 2016, he again asked Mr Krooglik about finance protection insurance and Mr Krooglik again gave the earlier response "listening to the response deponent realised that deponent has asked the same question earlier". Mr Mandhan agreed that as at 30 March 2016, he was dealing with Mr Jensen. He said that he asked Mr Jensen about finance protection insurance on 30 March 2016 in Mr Jensen's office. Mr Jensen called in the business manager from the other room and that was Mr Krooglik. Mr Jensen asked Mr Krooglik to explain to Mr Mandhan that he was getting a better interest rate than the banks offer and that they did not do finance protection insurance. Mr Mandhan agreed that he had made some mistakes in his affidavit. The conversation took place in Mr Jensen's office after Mr Mandhan had asked Mr Jensen. The second conversation occurred on 26 March 2016 and not 30 March 2016.
104 Mr Mandhan was asked about the Statement of Claim he filed on 19 October 2018 (exhibit R2). He was asked about the reference to Mr Krooglik from Peter Kittle Toyota, who was the finance manager with whom Mr Mandhan was dealing, telling Mr Mandhan that Toyota Finance is a private entity and not a bank and, therefore, they did not offer finance protection insurance. Moreover, Mr Mandhan was told that he had received the loan at a very good interest rate which is not available with banks.
105 Mr Mandhan agreed that the issue concerning finance protection insurance was raised by him at that stage, but left that out in his further affidavits.
106 Mr Mandhan was taken to exhibit R4 which is a document entitled "Finance & Insurance Acknowledgement or Waiver" (Acknowledgement or Waiver). He agreed that he signed the document. It was put to him that the document which he signed, being exhibit R4, was manifestly inconsistent with a statement that Toyota Finance did not offer finance protection insurance. He said that he did not remember the document, but he did agree that he had signed it. He agreed that he had put the issue about finance protection insurance in his first affidavits. Then he started reading the law and understanding exactly how things work and he concluded that he should not be pursuing this issue. When he contacted Toyota Finance and asked them whether they offered finance protection insurance, he was told that they did. He was told that he could not get the insurance because he worked as a casual employee. Then he appeared to say that he abandoned this issue because he had no recording that the conversation had taken place.
107 Mr Mandhan agreed that Mr Jensen was taking notes during the meeting on 19 March 2016. He said that Mr Jensen gave him a four page form which he filled out and returned on 26 March 2016. Mr Mandhan was taken to paragraph 1 of the Statement of Claim filed on 19 October 2018 which is as follows:
1. Application form for loan approval was filled and submitted to TFAL along with proof of identity, payslip & lease agreement along with utility bill via its agent PKT initially on 19th March 2016.
108 Mr Mandhan said that this allegation was wrong and that it was on 26 March 2016 that he submitted "all the documents". He said that there was a mistake and that it was a genuine one. He referred to the mistake as a typing error. He said that he did not know how to draft "a proper affidavit of statement of claim" and that this was a genuine mistake. I do not accept this evidence. I do not see how his understanding about the nature of the document was at all relevant to the particular statement he made. It was suggested to Mr Mandhan that he never provided a rental agreement to Toyota Finance, whether on 19 March or 26 March 2016. Mr Mandhan was asked about evidence-in-chief which he gave. Mr Mandhan referred to a telephone call he said he made on 19 March 2016 to the number xxxx xxx x39 (see exhibit A5). He said in his evidence-in-chief that that telephone record shows that he called Mr Jensen after sending the payslip to confirm that Mr Jensen had received it. Mr Mandhan agreed that, in fact, what occurred was that he saw Mr Foster, the salesman, through the window standing next to Mr Jensen and he called Mr Foster and asked to be put onto Mr Jensen. He then advised Mr Jensen that the payslips had been sent. He denied that he was making the evidence up.
109 Mr Mandhan was taken to Mr Jensen's email message to him on 21 March 2016 and he said that, although no mention of the loan being conditional (other than the payment of the deposit) is made in that email, Mr Jensen told him over the telephone that approval was conditional and the condition was that the relevant documents be submitted within 14 days. It was put to Mr Mandhan that he had fabricated the conversation with Mr Jensen to the effect that the loan was conditional despite the email because he, Mr Mandhan, realised that the email is inconsistent with his case that he was required to produce documents which he did on 26 March 2016, some five days after the email.
110 Mr Mandhan was questioned about the difference between the details he provided about the occasion upon which he met Mr Jensen and provided the rental agreement and income and expenses form to Mr Jensen in his affidavit affirmed on 12 March 2019 and in his evidence at the hearing. In his affidavit affirmed on 12 March 2019, Mr Mandhan said the following:
14. Sometime in between 23rd March 2016 to 17th April 2016 all the remaining documents mentioned in finance checklist and income and expenses form was submitted to Mr. Jensen, most probably on or before 30th March 2016.
111 Mr Mandhan's evidence to the Court was that he met with Mr Jensen on 26 March 2016. He provided documents to Mr Jensen, including the rental agreement and the income and expenses form. He asked about finance protection insurance. He was told by Mr Jensen that his loan had been approved unconditionally. Mr Mandhan's evidence was unclear as to whether he had forgotten the details at the time he affirmed his affidavit and that was the reason those details were not in the affidavit, or he had consciously decided not to include that information in that affidavit because of an understanding he had as to the level of detail which should be included in an affidavit. Again, his evidence was unconvincing.
112 Mr Mandhan was asked about statements he made in his affidavit affirmed on 28 November 2018. Those statements were said to relate to the wilful deceit by Toyota Finance's agent as to the completion of the income and expenses form. Mr Mandhan said the following:
b. Deponent while filling the income and expense statement manually, asked the business manager from PKT that, as the deponent is the only income earner and his partner is currently dependent on the deponent, how do the deponent show the relevant expenses and in which column.
c. Deponent was told by the business manager from PKT that as deponent is the one who is putting in the application for loan and there is no secondary applicant on the loan application form, deponent only needs to show only those expenses that he did onto to himself.
113 Those statements suggest to me that Mr Mandhan was alleging that he was told that as he was the sole loan applicant, he only needed to show the expenses that related to himself and not the expenses that related to his wife. Mr Mandhan appeared to deny that that was what he was saying in those statements. He said that he was told that as he was the only person in the family earning an income and his wife was not, then all the expenses were his and that he had to put all the expenses in the form. I found Mr Mandhan's evidence difficult to follow. For example, I am unclear as to what he was saying at the end of the passage of evidence at page 50 of the transcript for 19 May 2021.
114 With respect to whether Mr Mandhan provided information to Mr Jensen on 19 March 2016 about his income and expenses, in his affidavit affirmed on 12 March 2019, Mr Mandhan said the following:
24. As per the factual data given by the deponent by way of filled in income and expense form in relation to expenses was $3120 p/m approx. and by way of verbal confirmation about the total monthly expenses told to Mr. Jensen on 19th March 2016 was a ballpark figure of $2600 p/m to $3300 p/m …
115 In his affidavit affirmed on 5 July 2019, Mr Mandhan said the following at page 14:
b. Applicants monthly expenses were recorded as $691 by the agent PKT on behalf of its principle [sic] TFAL, were applicant had a dependent partner. In actual applicant told David that the approx. monthly expense of the applicant as $2850 per month on 19th March 2016 and provided the 3 month average monthly expenses as $3120 per month on 27th March 2016 in writing.
116 Mr Mandhan was cross-examined about the fact that in the first affidavit he refers to providing a range, whereas in the second affidavit, he refers to providing a specific figure. Mr Mandhan said that he forgot to mention a specific figure in his affidavit affirmed on 12 March 2019.
117 Mr Mandhan agreed with the suggestion put to him in cross-examination that in his affidavits in 2018 he made no suggestion of having told Peter Kittle Toyota a specific figure for expenses and Peter Kittle Toyota having made an error in relation to that. He said that he did not understand at the time of the earlier affidavits what needed to be put in an affidavit. It was put to him that in his Statement of Claim he did not refer at all to the assertion that he told Peter Kittle Toyota a figure for monthly expenses that was inconsistent with what Peter Kittle Toyota put in the ATLAS system. In answer to that suggestion, he said that that could be right. It was put to Mr Mandhan that his complaint about the figure used for expenses is central to his complaint about the conduct of Peter Kittle Toyota and he agreed with that. He agreed that he had not referred to the alleged error with respect to the statement of expenses in his first affidavits or in the Statement of Claim. He sought to explain himself by saying that "it took me time to understand how it should be represented in an affidavit properly, with evidences ….". To my mind, that explanation is unconvincing.
118 Mr Mandhan was taken to his letter of complaint dated 24 June 2018. He was asked about the advice he received concerning finance protection insurance. It was put to him that Mr Jensen told him that as a casual employee he was not eligible for finance protection insurance. He denied that. He said that he only came to know of that when he made an application for hardship assistance in January or February 2017. It was put to Mr Mandhan that he raised no complaint concerning a misstatement of his expenses in his letter dated 24 June 2018. His answer was that the rent paid under the rental agreement would itself show that the expenses were too low and, in any event, he was not aware of the precise complaint at that point. That evidence was unconvincing.
119 Mr Mandhan was asked about his telephone conversation with Mr Krooglik on 7 May 2016 during which Mr Krooglik told him that his loan had been approved unconditionally. It was put to Mr Mandhan that the number shown in the phone records attached to his affidavit affirmed on 12 March 2019 for the time 12:45:58 pm is Mr Jensen's number and not Mr Krooglik's.
120 Mr Mandhan agreed that he had given evidence that he told Mr Jensen on 19 March 2016 that he was renting. He agreed that, in the circumstances, the information that Mr Jensen entered into the ATLAS computer system for Toyota Finance on 21 March 2016 to the effect that he was living with parents was a fraudulent change. He agreed that Mr Jensen asked him on 19 March 2016 to bring in the rental agreement. Mr Mandhan believes that the rental agreement was uploaded into the system and that that was confirmed in their response to his complaint on 3 August 2018. In response to a question by cross-examining counsel to the effect that that would be a bizarre way in which to behave, Mr Mandhan said that he considered what Mr Jensen to have done to be a requirement of Toyota Finance. He said that the people at Peter Kittle Toyota and the lending assessors "all worked together to give a loan which was unsuitable to an applicant or to me".
121 Mr Mandhan agreed that he did submit a rental agreement to the Complaints Department with an email he sent to that department in the middle of July 2018. It was put to him that this is what Toyota Finance are referring to in their response to Mr Mandhan dated 3 August 2018.
122 A further matter put to Mr Mandhan was his response to an exchange I had with him on 20 December 2018 as follows:
HIS HONOUR: Did you give them a rental agreement, did you?
MR MANDHAN: Well, based on this information, yes, I have given ---
HIS HONOUR: No. No. No. Not based on any information.
MR MANDHAN: No. No. No. Yes. I - yes.
HIS HONOUR: You should know that.
MR MANDHAN: Yes. I have given. Yes.
HIS HONOUR: Right. And what, are they - you're saying they've denied that they got anything from you?
MR MANDHAN: Yes. What they have actually provided to Toyota Finance is I'm staying with my parents.
123 It was put to Mr Mandhan that he was initially not saying that he gave Toyota Finance a copy of the rental agreement based on his own recollection. He said that he answered that he had given them a copy of the rental agreement as soon as he understood the true nature of what he was being asked.
124 Mr Mandhan agreed that on 27 May 2016 Mr Krooglik took him through the document methodically and that he kept inviting Mr Mandhan to read the documents. He agreed that Mr Krooglik asked him to take the loan contract and the loan booklet with him and to read them. He was asked about the loan application. He disagreed that Mr Krooglik took him through the document "from the start". He claimed that he did not notice the top line on the second page which refers to "General Living Expenses: General: $250" because Mr Krooglik had his finger over that entry. Mr Mandhan said that he could not see the top rectangular box on the second page. I do not accept this evidence. It seems unlikely and, in any event, I do not find Mr Mandhan to be a witness of credit. Mr Mandhan said that he did not read the entry on the first page referring to the fact that he was "Living with parents". Mr Mandhan appeared to say that his verification and declaration was of the information contained in the documents he provided rather than the information in the loan application. He also said he believed that a credit check had been done and, therefore, the approval was "not only based on my information". Mr Mandhan agreed that he read every document he was given other than the loan application for the Toyota Corolla and the loan application for the RAV4 motor vehicle. Mr Mandhan denied the proposition that his evidence that Mr Krooglik completed the CCC Compliance Checklist in his presence was a lie. The document is exhibit A37 and I have no reason to draw any conclusion other than it was completed by the person who purported to complete it, that is, Ms Regina Brooks on 30 May 2016. I consider that Mr Mandhan has fabricated the evidence that Mr Krooglik completed the CCC Compliance Checklist in his presence.