Permanent Trustee Company Ltd v von Risefer & Anor [2000] QSC 164

Supreme Court of Queensland|2000-06-09|Before: Byrne, J

[1] By registered mortgage No 701836320, the defendants mortgaged their property at 53 Gwydir Court, Helensvale, described as lot 17 on registered plan No 846050, which is the land contained in Title Reference 18493233. The mortgage was granted to secure the repayment of $360,000, and interest. The plaintiff, the mortgagee, brings this action to obtain possession of the land, contending that the defendants have defaulted in the performance of obligations they assumed under the mortgage.[1]

[2] The claimed defaults are of non-payment of moneys: an interest instalment of not less than $2,010.00 due on 20 February 1998; all the interest instalments payable from April 1999; and $370,079.30 mentioned in a notice of exercise of power of sale despatched in March 1998.

[3] By cl 3.3 of the mortgage, the defendants were to pay "interest on the Secured Moneys at the times and calculated in the manner specified in any Related Agreement". "Related Agreement"[2] means "any ... agreement ... entered into by ... the Mortgagee and any other person ... in connection with the Secured Moneys or interest on the Secured Moneys". "Secured Moneys" means[3] "(b) all advances ... and credits or financial accommodation given ... or that may be made or given ... by the Mortgagee ... to, for or on account of the Mortgagor ... or to any other person at the request of the Mortgagor"; and "(f) all moneys which ... may become owing ... by the Mortgagor ... under ... this mortgage or any Related Agreement".

[4] On the plaintiff's case, a "Related Agreement" is constituted by:

a. a facsimile copy of a loan offer dated 17 October 1996 transmitted by the mortgage manager, La Trobe Home Loans of Australia Pty Ltd ("La Trobe") to Mr Bakewell, a principal of Queensland Financial Securities, the defendants' mortgage broker; and

b. the defendants' signed acceptance of that offer faxed to La Trobe on 21 October 1996.

[5] An Offer of Loan ("Offer") on La Trobe letterhead addressed to the defendants was attached to a cover sheet transmitted by facsimile to Mr Bakewell on 17 October 1996. Mr Bakewell cannot find his file and does not have the document or a copy of it.[4] La Trobe retained the original.[5] It contains the cover sheet and 7 other pages. The first of them, which looks to be typed, advised the defendants that a loan was offered "by us on behalf of Permanent Trustee Company Limited (`The Mortgagee') as lender on the terms set out below". Those terms included (i) principal, called "Total Loan", of $360,000; (ii) an "Interest Rate" prescription of 9.25% per annum, "variable Interest Only for five (5) years"; (iii) a description of the security required as a registered first mortgage over the Helensvale land; and (iv) under the heading "Repayment Schedule", the words "Due: 20th Monthly". The second to fifth pages contained printed terms, among them:

"(2) Payment of any outstanding fees ... and all relevant expenses connected with this transaction shall be borne by you ...

(4) Mortgage Documents must be signed within one (1) month from the date of this Offer of Loan ... or such later date as the Lender may allow. ...

(5) The Interest Rate quoted in this offer is an indicative rate only ... The Interest Rate payable will be that rate applicable at the date of initial drawing of the Loan ...

(22) You will be further advised of the commencement date of your monthly interest instalment. Your repayment is due and payable on or before the twentieth (20th) day of each calendar month and by accepting this offer you agree to make payments in the amount specified by us monthly on the date or date advised to you. ... [6]

Interest on the Loan will be calculated on daily balances from the date of settlement of the Loan. You must, however, pay interest for the broken period from the date of settlement to the end of the calendar month in which settlement occurs by no later than the twentieth (20th) day of the first month after the month in which settlement occurs. ...

(27) If the Loan is not settled ... on or before thirty (30) days after the date of this Offer of Loan, this offer will at the Lender's option terminate. ...

(29) (a) If you fail to comply with the provisions of the Offer of Loan or the Security, the Lender may ...demand that you repay immediately all or part of any money owing by you to the Lender in respect of the Loan or otherwise. ...

(30) ... Any communications or dealings by the Lender may be given on behalf of the Lender by the Mortgage Manager as the Lender's Agent ...

(33) ... upfront fees (as per the Schedule of Related Charges) will be deducted from the first Loan advance, unless specified otherwise as a Special Loan Condition ...".

[6] The "SCHEDULE OF RELATED CHARGES" prescribed the "fees ... payable by the borrowers ...". These included an "Application Fee: 1% To cover our costs in preparing your application" and a "Full Scale Fee for Valuation of property".

[7] Pages 6 and 7 of the Offer were, except for two small differences, identical. Page 6 began "ACCEPTANCE OF OFFER OF LOAN (To be kept by you)". Page 7 was headed "ACCEPTANCE OF OFFER OF LOAN (DUPLICATE) (To be returned to La Trobe)". Page 7 also included a boxed area marked "Office use only" where provision was made for the insertion of details about the receipt by La Trobe of the borrowers' acceptance and other internal arrangements. The pages also contained this advice:

"This Offer of Loan is made subject to the General Terms and Conditions detailed in this letter including any Special Conditions listed below. Certain General Terms and Conditions and all of the Special Conditions need to be satisfied prior to the loan being made. Where there is any divergence between the General Terms and Conditions and the Special Conditions contained in this letter the Special Conditions will apply.

If you wish to accept this Offer of Loan, you shouldacknowledge (sic) your acceptance by signing and dating the Acceptance of Offer of Loan (Duplicate) page 8 attached, and return it to La Trobe within seven (7) days in the envelope provided."[7]

[8] Five "Special Conditions to be satisfied ..." appeared towards the foot of both pages 6 and 7. The first specifies "Upfront Fees" of $4,220.00: "$320.00 on application and $3,900.00 deducted at settlement". The second concerns documents requested by La Trobe, including an authority to obtain credit information. Others stipulated: "d) ...written confirmation that existing Westpac Mortgage, AVCO Mortgage ... has (sic) been conducted in accordance with approval arrangement; e) Final Inspection prior to drawdown" - a reference to the house under construction on the Helensvale property.

[9] The defendants signed both pages 6 and 7 below this acknowledgment:

"I/We accept this Offer of Loan on the terms and conditions in this Offer of Loantogether (sic) with the General Terms and Conditions pages and Schedule of Related Charges page and Special Conditions listed below, which I/We have received, which have been read and are understood. I/We declare the loan will be used for the purpose(s) stated in this Letter of Offer."[8]

[10] Afterwards, page 7 was transmitted by facsimile to La Trobe.[9] The signed page 6[10] was also posted to La Trobe.

[11] On 17 February 1997, the defendants saw their solicitor, Mrs Reynolds, and executed copies of the mortgage. Their signatures appear on page 1 of those instruments.[11] Printed in the top right-hand corner is "Page 1 of 38"; but as there is no page 2,[12] the mortgage actually consists of 37 pages. That day, Mrs Reynolds gave the defendants a copy of their mortgage.[13]

[12] On 19 February 1997, La Trobe's solicitors wrote to Mrs Reynolds[14] pointing out that two of the Special Conditions remained to be satisfied before the advance was to be made: as the letter stated them, confirmation that the Westpac and AVCO contracts had been conducted within approved arrangements, and that local authority approval had been obtained for the building works or that a certificate of occupancy was available.

[13] The loan was drawn down on 24 February 1997. As a settlement letter from by La Trobe's solicitors to Mrs Reynolds indicates,[15] part of the $360,000 was applied to discharge a debt owing to Westpac Banking Corporation. $3,650.00[16] was initially deducted for the 1% loan application fee prescribed by the Schedule of Related Charges and a $50.00 "inspection fee." $62,171.51 was paid to solicitors, Robinson & Robinson, to repay "bridging finance"[17] put in place while the house was constructed. The brokerage fee ($3,600.00) that Mr Bakewell had negotiated[18] with the defendants for his services was paid to Queensland Financial Securities. All this information was conveyed by Mrs Reynolds to the defendants by letter.[19]

[14] By La Trobe's 24 February 1997 letter,[20] the defendants were informed that the interest payment due on the 20th of the next month was $2,936.01[21] and that, commencing April 1997, "and each month thereafter, unless otherwise advised," future payments "will be $2,529.01". The "variable" interest rate for which the Offer provided was subsequently adjusted. For example, La Trobe notified a reduced monthly payment from August 1997 of $2,145.00.[22]

[15] By letter dated 18 February 1998[23] addressed to the defendants at their Helensvale home, La Trobe sought payment of "arrears of $50.00". The letter continued:

"... your next monthly repayment of $2,010.00 is due on or before the 20th February, 1998 and each month thereafter unless otherwise advised."[24]

[16] The February 1998 interest instalment[25] was due on the 20th. No payment was made then. This omission constitutes the first of the alleged defaults.

[17] A few payments were made afterwards. But the mortgage may be enforced "despite the acceptance of any part of the Secured Moneys or interest after default"[26]. Moreover, there is no suggestion that the plaintiff is precluded from relying on any default inherent in non-payment of the February 1998 instalment by reason of receipt of later payments or other subsequent conduct. Rather the defendants contend that they were not in default despite not having paid. The application and valuation fees are central to this notion. According to the defendants, those fees, aggregating $4,400.00, were wrongly debited to their account, and, if notionally re-credited, effectively constitute pre-payments sufficient to extinguish any liability to pay about $2,000.00. The defence to the $3,600 impost is that the term of the Offer which imposes a liability to pay that 1% fee is without legal force. Two grounds are suggested. The defendants protest that the provision of the Offer creating the obligation to pay the application fee was not in the document transmitted to Mr Bakewell.[27] Secondly, Mr von Risefer testified to a conversation in November 1996 with Mr Ford, La Trobe's General Manager, the effect of which, as the defendants would have it, was a consensual abandonment of the loan contract. As to the valuation fee debits, it is additionally variously said that the valuations were not carried out, or if they were, that they were not done at the defendants' request or expense.[28]

[18] The defendants have not paid anything under the mortgage since April 1999.[29] These continuing, unremedied omissions to pay interest due on the 20th day of each month are relied on as a second class of defaults. Now, execution of the mortgage is proved. The state of the loan account reveals that there were no prepayments which could substitute for those unpaid instalments.[30] And so the plaintiff shows a right to possession[31] if the Offer is a "Related Agreement."

[19] The Schedule of Related Charges at page 5 of the Offer is the source of any right to debit the $3,600 application fee.[32] Clause 22 of the General Conditions and the mention of "Due: 20th Monthly" under "Repayment Schedule" on page 1 of the Offer are said to establish the obligation to pay instalments on the 20th of each month. Much therefore turns on the efficacy of the contents of the Offer.

[20] Desperate to avoid the consequences of non-payment of interest instalments, the defendants see themselves as defending their home.[33] By what they have claimed, and by their demonstrable anxiety to protract[34] the litigation, they have assuredly attempted to do. Things they have said, both in and out of the witness box, have routinely been advanced with an eye to self-interest rather than with a concern for the truth. Mr von Risefer[35] admits to a poor, current memory.[36] But he is not willing to face facts. His cunning wife has not been accurate either. She evinced a pronounced reluctance to answer questions,[37] interrupted her husband's testimony in attempts to influence its content,[38] and, putting the matter tersely, was just unwilling to tell the truth.

[21] The tendency of the defendants to deceit is exemplified in several ways. Two may be mentioned. The defendants were given to strident recriminations of fraud, forgery, criminal acts, false accounting, and attempts to defraud the Revenue: even to alleging a conspiracy involving illegal Chinese immigrants.[39] These are all baseless characterizations, as the defendants - Mrs von Risefer at any rate - must have appreciated.[40] Secondly, the defendants persisted in claiming that they did not know that the plaintiff was their mortgagee before steps were taken to enforce the mortgage, believing instead[41] that La Trobe was the mortgagee. Several documents, including many the defendants acknowledge having read[42] before enforcement was attempted, identified the plaintiff as the mortgage or credit provider. The mortgage[43] of course named the plaintiff as mortgagee. The plaintiff is designated as both "Mortgagee" and "Credit Provider" on page 1 of the Offer; and pages 2, 4 and 5[44] of that document are headed with its name in large, bold print. La Trobe's settlement letter[45] mentions the plaintiff as "Credit Provider". So does the account review notifying the interest reduction to $2,145 monthly,[46] the 18 February 1998 letter,[47] the discharge calculation report La Trobe sent in March 1998,[48] a 30 September 1997 letter advising of arrears,[49] account statements for periods ending 1 April and 31 December 1997,[50] and La Trobe's letters of 17[51] and 24 March 1998.[52] Mr Bakewell testified that "documentation" given to the defendants before the advance would have shown "Permanent Trustee" as the lender.[53] And then there is Mrs von Risefer's own affidavit,[54] where she deposes that "On 24-2-97 we re-finance our home loan from Permanent Trustee through his representative La Trobe Home Loans"[55] (sic).

[22] The defendants are most unreliable historians. On any controversial matter, their evidence cannot be accepted.

[23] I accept the evidence of Mrs Reynolds whose testimony, among other things, disposes of the defendants' oft-repeated contention that they initialled[56] every page of the mortgage and does not support Mr von Risefer's false claim that the defendants signed copies of it in blank.[57] I also accept the evidence of Messrs O'Connell, Gidman, Hamilton, Watson, Veivers, Robson and McLeod. Mr Bakewell's memory of the circumstances surrounding events in 1996 and 1997 has dimmed with time; and, unfortunately, he could not find his file.[58] Although generally his evidence appears reliable, he was mistaken in thinking[59] that there was but one Special Condition attaching to the loan and that it concerned a certificate of occupancy.

[24] The defendants' position with respect to the "missing" pages was not consistent. While Mrs von Risefer has always claimed that the (apparently typed) page 1, as well as the printed pages 2-5 were not produced,[60] her husband asserted that pages 2-5 were the "missing" ones.[61]

[25] My adverse impression of the veracity and reliability of both defendants aside, other factors combine to show that Mr Bakewell gave the defendants every page of the Offer:

a. Mr Bakewell does not suggest that some pages were not provided to the defendants.

b. Mr O'Connell testified[62] that the Offer sent to Mr Bakewell contained all pages - evidence supported by a facsimile machine notation impressed on the 6th page of the Offer: "Page 7".[63]

c. By their signatures on the acceptances,[64] the defendants twice acknowledged having received, read and understood "the General Terms and Conditions pages and Schedule of Related Charges page ..." that constitute pages 2-5 of the Offer.[65]

d. Mrs Reynolds discussed with the defendants the terms of the Offer, which they took to her.[66] Had several pages been missing, she could not have failed to notice the deficiency.

[26] For months, the alternative to the "missing" pages contention was that the Offer had ceased to regulate relations because, as was often said,[67] the loan contract automatically terminated when the advance was not made within 30 days of acceptance of the Offer. Given cl 27 of the General Loan Conditions,[68] this was always a hopeless contention. Recognition of that reality perhaps explains the late invention of the conversation with Mr Ford.

[27] On the 12th day of the trial, Mrs von Risefer introduced a new contention: that La Trobe "seemed to withdraw the loan".[69] Six months later, on day 13,[70] Mr von Risefer testified that the parties did not proceed with the Offer because La Trobe withdrew it. In this context, he claimed that Mr Ford had told him early in November 1996 that La Trobe was not lending on unfinished houses[71] and that, without a certificate of occupancy, "they are not giving a penny".[72]

[28] "Drawdown" of the $360,000 was dependent on a "Final Inspection" of the Helensvale house. The last of the Special Conditions said so. And Mr Bakewell knew that the $360,000 would not be paid until construction had reached the stage where a certificate of occupancy was available.[73] What is not true, however, is the suggestion that the contract resulting from the communication of acceptance of the Offer was terminated, whether expressly consensually or by abandonment. I do not accept that Mr Ford, if he spoke to Mr von Risefer at all, said anything which might in law have rendered the Offer inoperative as a "Related Agreement".

[29] Other than to say it was his wife's work, Mr von Risefer could offer no explanation for the assertion in the amended defence[74] that "the offer was for 2 months and expired on 21 December 1998" (sic). Nor did he say why earlier in the trial the defendants had been so emphatic that the Offer expired by effluxion of time 30 days after its acceptance. In these circumstances, it is no surprise that there are other indications that the accepted Offer is a "Related Agreement":

a. The Offer is the only document that contains terms essential to the intended transaction: for example, loan duration; the interest only, variable rate, character of the arrangements; and the fixing of dates when interest instalments fell due.

b. Mr O'Connell testified that the Offer was not withdrawn, explaining that delay in settlement after 21 October 1996 was attributable to the lender's insistence on postponing the advance until the house was completed.[75]

c. as Mrs von Risefer's cross-examination[76] of Mrs Reynolds elicited, Mrs Reynolds discussed the Offer with the defendants, which would have been a pointless exercise if it had ceased to have significance.

d. There was no complaint about the $3,600 debit before the mortgage was sought to be enforced.[77] Yet soon after the advance, the defendants received their solicitor's letter[78] advising details of the settlement disbursements, including the $3,600. The La Trobe settlement letter[79] informed the defendants of a $3,650.00 debit for an "App & 1 Inspection Fee". And periodic account statements[80] mentioned the debit, describing it as "balance of upfront fees."[81]

[30] This conclusion that the Offer is a "Related Agreement" (i) establishes the propriety of the $3,600.00 debit; (ii) disposes of the defendants' contention that they were not in default despite non-payment of the instalment due on 20 February 1998; and (iii) shows that every non-payment of the instalments which fell due on the 20th of the month from April 1999 constitutes an additional default justifying a judgment for possession. Still, as evidence about valuation fees occupied considerable time, findings about them may as well be made.

[31] Mr Hamilton is a Gold Coast valuer employed by Taylor Byrne. In October 1996, at Mr Bakewell's request,[82] he valued the Helensvale land.[83] The $320.00 valuation fee was invoiced to the defendants and paid by Mrs von Risefer. In January 1997, at La Trobe's written request,[84] Mr Hamilton revalued the property.[85] His $200.00 fee was invoiced to La Trobe on 31 January 1997[86] and paid on 3 April 1997.[87] The $200,00 had not been taken at settlement as an "up-front fee" because initially La Trobe was erroneously advised that the fee had been paid[88] by the defendants. It was debited to the loan account on 25 March 1997.[89]

[32] In mid-August 1997, Mrs von Risefer requested Taylor Byrne to revalue the property. The $200.00 fee for this valuation[90] was invoiced to the defendants[91] and paid[92] on 14 July 1998 by Sator Enterprises Pty Ltd, a company associated with the defendants. La Trobe requested a fourth Taylor Byrne valuation[93] on 24 September 1997.[94] Taylor Byrne invoiced La Trobe on 17 October 1997 for their $200.00 valuation fee,[95] which was paid by La Trobe on 20 January 1998.[96] This was debited to the account on 6 January 1998,[97] apparently after La Trobe mistakenly despatched the $200.00 to the Brisbane office of Taylor Byrne. The remittance was returned. On 31 January 1998 payment was made to Taylor Byrne's Gold Coast office[98] and the $200 again debited to the account.[99] On 1 February 1998, the $200.00 debit made on 6 January 1998 was reversed.[100]

[33] The two contentious $200 debits - those on 25 March 1997 and 31 January 1998 - relate to valuations by Mr Hamilton. His testimony shows that both those valuations were conscientiously prepared[101], and there is no basis for supposing that the fees were other than reasonable. The entitlement to debit them is established: as to the first, by the Schedule of Related Charges, under the heading "Up-Front Valuation Fees";[102] and as to the second, by virtue of an oral agreement Mrs von Risefer made with Mr Gidman, a La Trobe employee.

[34] The defendants wrote to La Trobe on 12 August 1997[103] requesting an increase in the "loan ratio", arguing that since the initial advance, "we have spent approximately $70,000 extra on the home." Mr Gidman told Mrs von Risefer that a new valuation would be needed before any increase would be extended, and that "she would be required to pay" the $200 cost of Taylor Byrne's providing it.[104] Mrs von Risefer agreed.[105] Eventually, La Trobe received the valuation.[106] So much for that second $200. This leaves the $400 debit.

[35] Within La Trobe, it was considered that Mr Hamilton's fourth valuation did not justify an increased loan. When Mrs von Risefer heard this from Mr Gidman, she expressed dissatisfaction with Taylor Byrne.[107] This lead Mr Gidman to raise with her the "option of arranging for a valuation herself".[108] He told her that La Trobe had used Preston Rowe Paterson as valuers. He gave her contact details so that she could "make arrangements with them in regards to what fee they would be charging her".[109] Mrs von Risefer reverted to Mr Gidman to say that she had negotiated a fee of $800. Mr Gidman then ordered[110] the valuation on the defendants' behalf.

[36] La Trobe's intervention to request the valuation even though Mrs von Risefer had negotiated the $800 fee directly is explained by Mr Veivers, a valuer with Preston Rowe Paterson, who had agreed the fee with Mrs von Risefer.[111] His firm had dealt with the defendants before. Anxious to minimize contact with Mrs von Risefer,[112] and to hold La Trobe responsible for payment of the fee,[113] Mr Veivers arranged for Mr Gidman to request the valuation.

[37] On 20 November 1997, Mr Veivers inspected the property.[114] By this time, through discussion with Mrs von Risefer, he was aware that the defendants hoped for a valuation of $550,000-$600,000.[115] After inspection, Mr Veivers considered that his valuation was unlikely to approach that figure.[116] He discussed his concerns with Mr Gidman.[117] Mr Gidman told Mrs von Risefer of the valuer's pessimism.[118] They then discussed two options: to have the valuation completed and the valuers charge their $800, or else to stop the process, leaving the valuers to charge for work to date.[119] At Mrs von Risefer's request, Mr Gidman contacted Mr Veivers. He was content to stop work and make his photos available for $400.[120] Mrs von Risefer told Mr Gidman to accept that proposal,[121] which he did.[122] Eventually, an invoice[123] for that $400 fee was rendered to La Trobe. La Trobe paid the account in May 1998.[124]

[38] In conversation with Mr Gidman, Mrs von Risefer agreed to meet La Trobe's expense in respect of the Veivers valuation. She also expressly assented to Mr Gidman's proposal that the $400 either be paid by the defendants to the valuers directly or be charged to the loan account.[125] It was not paid by the defendants to the valuers. The $400 was therefore properly charged[126] to the account pursuant to that consensus.

[39] The plaintiff has established an entitlement to judgment for possession on two bases: non-payment of instalments due (i) on 20 February 1998; and (ii) from April 1999. So it is not necessary to examine the alternative case that the defendants' omission to remedy the default alleged in the Notice of Exercise of Power of Sale[127] affords another basis for judgment. But as the defendants deny receiving that notice,[128] that receipt issue may as well be decided.

[40] On 26 March 1998, Mrs von Risefer signed an Australia Post receipt[129] for an item of registered mail. The envelope was addressed to the defendants at their home.[130] As Mr O'Connell testified[131], the envelope contained the Notice of Exercise of Power of Sale.

[41] Lots of other things were said by the defendants.[132] None merits discussion.

[42] The right to possession is established. I will hear submissions as to the form of judgment and costs.

[1] See 78(2)(c)(i) Land Title Act 1994. The amended writ seeks "recovery", not delivery, "of possession": cf Finance Allotments Pty Ltd v Young [1961] Qd R 452, 455; Metropolitan Permanent Building Society v McClymont [1983] 1 Qd R 160; Hubner v Australia and New Zealand Banking Group Limited [1999] QCA 161 pars 7, 19. Even so, an order in personam for delivery seems available: see UCPRs 896(b), 898(1)(a).

[7] The reference to page 8 is a mistake. It should have been to page 7. Emphasis is original.

[11] There is an unexplained, immaterial difference between the instrument lodged in the Land Registry as the original (see certified copy, Ex 3) - which has "14/2/97", a Friday, as the date of the defendants' execution - and the duplicate (Ex 27), which correctly records that date as "17/2/97".

[12] See Exs 3, 27. The omission is accounted for. No page 2 was included in this standard form mortgage executed by the defendants because, Mrs Reynolds supposes, that page was to accommodate additional attestation clauses required where more than two natural persons were to sign as mortgagors: T 532 ll 1-17; 533 ll 1-10.

[13] T 534 ll 15-28, 55-56; 535 ll 1-15. The mortgage was executed by the plaintiff next day. It was registered on 27 February 1997.

[15] Ex 12, dated 24 February 1997. Ex 68 is another copy of this letter.

[16] The $50 inspection fee was not actually claimed because no inspection was undertaken: T 290 ll 35-291 l 5. So the $3,650.00 debit was effectively credited back. Although the first Special Condition allowed more to be deducted at settlement, $3,600 was taken: Ex 47; T 379 ll 14-18.

[17] As Mrs Reynolds described the borrowing: T 527 l 16.

[18] See Ex 9, the defendants' authority to Queensland Financial Securities of 16 October 1996.

[19] Ex 69, dated 24 February 1997, which Mrs von Risefer admits receiving: T 655 ll 6-7.

[21] This included about $407.00 for interest for the period 24-28 February.

[22] Ex 42, a letter to the defendants.

[24] The interest bill for the 28 days in February 1998 was $1,852.37. By cl 22 of the Offer, however, and to ensure that the instalments remained, until varied, the same from month to month regardless of the number of days in a particular month, the borrowers were to pay the notified sum.

[25] The 18 February letter is not shown to have arrived by 20 February. Clause 55.2 of the mortgage deems a notice sent by mail to have been received 48 hours after despatch. However, there is no evidence of the time of posting. The letter notified a reduction in interest payable. If it were not received, or not deemed to be received, by 20 February 1998, the defendants were supposed to pay the higher, earlier notified, amount ($2,145.00). However, the plaintiff accepts that Ex 43 would preclude it from alleging a default if no more than $2,010 had been paid on the due date.

[27] It was often suggested that the loan contract had terminated by effluxion of time when the advance was not made within 30 days of 21 October 1996 (see fn 67). At one stage, it also seemed as if the defendants had it in mind to propose that none of the Special Conditions formed part of the contract. All those Conditions were crossed out on a copy (Ex 11) La Trobe retained of the acceptance that Mr Bakewell had transmitted by facsimile. Mr O'Connell testified (T 318) that it was office practice for such conditions to be deleted progressively when satisfied. This, I accept, is the true explanation, although Mrs von Risefer did say conflicting things - none true - concerning the striking through: T76-78 and 324-327. Mr Bakewell (T 78 ll 15-22) supports Mr O'Connell.

[28] The defendants also rely on the missing pages contention to defeat the valuation fees debits. The plaintiff, however, may not need the Offer to recover valuation fees. Clause 8(d) of the mortgage requires the defendants to pay all costs and expenses incurred by the plaintiff in connection with the land, including the expenses of any valuation or report.

[29] Which is not in contest: see Ex 47; T 304 (Mr O'Connell); and T 708 l 50; 1033 l 30-1034 l 17 (the defendants).

[31] Upon default, the mortgage may be enforced by an action to obtain possession under s 78(2)(c)(i) without prior notice or demand: see cl 22.1 of the mortgage; cf City Mutual Life Assurance Society Ltd v Lance Creek Meat Works Pty Ltd [1976] VicRp 1; [1976] VR 1, 9-10; Citibank Savings Ltd v Stergiou, Stanley & Anor (1996) 66 FCR 587, 589-590.

[32] The plaintiff does not claim that the reference to "upfront fees" in the Special Conditions justifies debiting the $3,600.

[33] T 86 l 2; 145 l 20; 831 l 57; 889 l 16; 1186 l 10.

[34] See, eg, applications to adjourn (T 15 l 27; 38; Ex 2 par 34, Ex 34 par 1, T 453-468; 612 ll 30-614 l 38; 644; 664-673); cf conduct at T 663; Ex 59 (Mr von Risefer's withdrawal of authority to his wife to act as his advocate); Exs 51, 56, 71, 74 and 128.

[35] who sometimes presented more as delusional than duplicitous.

[37] See, eg, her cross-examinations starting at T 746 and 1120 with all their prevarications and evasions.

[39] As some such allegations, see Ex 2 pars 6, 10; Ex 33; T 11 l 25-31; 63 l 13; 97 l 35; 101 ll 43-48; 187 ll 50-52; 277 l 15; 288 l 37; 333 l 60; 352 ll 55-60; 354 ll 48-49; 369 ll 45-55; 486 ll 26-27; 498 ll 40-45; 536 ll 55-60; 539 ll 35-40; 611 ll 4-16; 631 ll 47-51; 656 ll 35-40; 810 l 40; 831 l 46; 832 ll 35-40; 837 ll 37-40; 856-857; 862 ll 5-15; 864 ll 45-50; 865 ll 10-20; 866 l 10; 869 ll 35-60; 872 ll 1-6; 875 ll 39, 60; 893 l 10; 896 ll 3-7; 916 l 10; 925 ll 45-50; 930 ll 20-30; 938 ll 40-939 l 20; 956 l 45; 978 ll 1-10; 995 ll 58-60; 1000 ll 51-54; 1132 ll 1-5; 1163 ll 14, 26; 1165 ll 33-34; 1175 ll 45-48; 1176 ll 30-50; 1177 ll 40-55; 1180 ll 40-55; 1182 l 50-1183 l 8; 1184; 1189 ll 1-50.

[40] There were a few oddities in the documents. That the mortgage instruments had different execution dates is somebody's harmless error. So is the reference to page 8, not 7, in the Offer. The absence of a page 2 in the mortgage is adequately explained: see fn 12.

[41] They have repeatedly maintained this: see, eg, Ex 2 par 3; Ex 33 par [1847] EngR 531; 1; Ex 131, par 8; T 21 l 15; 81 ll 50-60; 82 ll 34-40; 89 l 4; 160 l 45; 689 l 32; 738 l 20; 740; 836 ll 7-22; 853 ll 42-55; 855; 859 ll 15-20; 861 ll 35-40, 55-60; 867 ll 50-60; 912 ll 45-55; 923 ll 15-30; 976 l 16-17; 1109 l 25; 1116 ll 5-6; 1176 ll 30-50; 1182 ll 5-10; 1212 l 36;

[42] See admissions at T 700 ll 10-20; 756 ll 5-10; 852 ll 22-35; 1005 ll 35-50; 1008 ll 23-27.

[44] Allegedly, but not in fact, missing pages.

[51] Ex 117 - which, like Ex 53, is an original document produced and tendered by the defendants.

[56] eg Ex 2, pars 4, 7; T 373 ll 10-31; 657 l 10; 160 ll 1-5; 1181 l 6.

[57] eg T 161 l 4; 997 ll 55-60; 1000 l 1-10, 22-27; 1176 ll 56-60; 1198 l 42.

[61] T 859 l 10. At one point, however, he claimed that five pages were omitted: T 379 ll 1-5.

[63] See Ex 39. No doubt the first of those seven was the cover sheet.

[65] Even if pages 2 - 5 had not been communicated, that would not seem to matter in view of their incorporation into the contract by this reference: Williston on Contracts, 3rd ed, s 628, pp 903-904.

[67] See, eg, T 20; 21 ll 30-40; 98-100; 102 l 57; 224 ll 28-35; 281 ll 5-10; 310 l 55-60; 312 ll 25-30; 316 ll 50-60; 630 ll 3-15; 758 l 36. The point was touched upon in Mrs von Risefer's address: T 1202 l 25.

[73] T 128 ll 40-42; cf Exs 16 and 18 - correspondence mentioned in fn 81.

[75] T 290 ll 1-10; 315 ll 20-30; 316 ll 10-15; 630 ll 9-24; Mr Bakewell said the same: T 128 ll 40-42.

[76] Despite my cautioning her about the risks of waiving privilege by exploring communications with Mrs Reynolds (T 526), Mrs von Risefer chose to open up the topic.

[77] Mrs von Risefer said that when the defendants decided to challenge charges to the account, they first approached Mr Bakewell (T 901 11 50-60; cf 1005 ll 50-60). He remembers that there was no complaint about such things until about the middle of 1998 (T 130 ll 40-45).

[80] Which one or both defendants perused: see fn 42.

[81] Incidentally, the pre-settlement correspondence shows La Trobe, its solicitors and, more importantly, Mr Bakewell and Mrs Reynolds proceeding on the basis that the advance then in prospect was to be made in reliance on the Offer. See, eg, Mr Bakewell's memoranda to La Trobe of 3 (Ex 16) and 17 (Ex 18) December 1996, speaking of a Council inspection and a certificate of occupancy; and La Trobe's solicitor's settlement letter to Mrs Reynolds (Exs 12,68), showing disbursement of a valuation and application fee ($3,650).

[84] Ex 26 - request dated 10 December 1996.

[88] T 291, ll l35-45, evidence of Mr O'Connell.

[101] T 150 ll 22-36; 216 ll 25-40; 217.

[102] Or by cl 8 (d) of the mortgage: see fn 28.

[110] See valuation request sheet, Ex 29, dated 14 November 1997.

[112] Whose cross-examination wrung from a reticent Mr Veivers his perception of her in 1997 "as one of the most difficult people I have ever dealt with": T 489 ll 26-27.

[113] T 476 ll 1-7; 496 ll 47-55; cf 478 ll 10-20; 480 ll 1-15; 481 ll 10-20.

[117] Mr Gidman recalls that Mr Veivers had "negative opinions", and wanted more information: T 168 ll 15-25.

[122] see testimony of Mr Veivers at T476 ll 5-10; 521 l 45-522 l 6.

[123] Ex 61; the invoice was accompanied by the photos and a letter dated 1 December 1997 from the valuers (Ex 30) which records that the valuation had been "cancelled due to concerns and verbal valuations provided to you already".

[124] T 476 ll 48-53; Ex 62. The $400 was debited to the loan account on 13 May 1998: Ex 47.

[125] T 168 ll 48-169 l 5; 171 l 55-60; 173 ll 30-40; 174 ll 52-175 l 5; 175 ll 25-36; 176 ll 10-18; 178 l 16-23; 190 ll 50-191 l 8; 191 ll 50-192 l 5; 193 ll 5-30; 195 ll 25-30; 197 ll 1-12; 198 ll 10-15; 201 ll 45-50.

[126] Although account statements (eg, Exs 47, 66, 79, 80, 81, 104-108, 112, 113, 116, 118 - some of those exhibits are copies of others) showed the three contentious valuation debits, there was no complaint about any of them before initiatives to enforce the mortgage: see fn 77.

[128] See, eg, T 608 ll 15-21; 910 l 50; 942 ll 40-60; 948 ll 15-20; 1112 ll 57-60; 1182 l 18; 1200 l 48.

[132] See, eg, Exs 2, 33, 131; and T 1170ff.

At a glance

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Judgment (121 paragraphs)

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Cases Cited (1)