243 At Mr Vlasic's request, she said that she prepared a LoDoc Declaration in her own handwriting and gave it to Mr Kotevski to sign. She also, in her own handwriting, completed the Loan Application.
244 She said that she recalled Mr Kotevski returning to the office with Mr Micic when Mr Vlasic handed over a cheque after first making a copy of it. The affidavit of 22 September corrected one statement in her previous affidavit. She said that the name "Alexander Kotevski " printed on the Declaration Under Consumer Credit Code at page 141 of Ms Pogson's affidavit is not in her handwriting, although the date on the page is.
245 In cross-examination by Mr Docker, Ms Radanovic confirmed that Mr Kotevski attended 3 meetings in her office, each time accompanied by Mr Micic. She described Mr Kotevski as "grey haired", "bald on top", "chubby" and "mid 60's". She was confident that the same person attended each meeting.
246 She said that the first two meetings occurred about a week apart. She said the first occupied about 30 minutes and while it took place she was seated next to Mr Vlasic's desk and listened to what was being said. She did not, so far as she could recall, speak herself. She did, however, take notes, which she threw away after the loan was settled. She said that the conversation set out in her affidavit occurred at the first meeting and it consisted of questions asked by Mr Vlasic and answered by Mr Kotevski. However, she said, in effect, that she could not recall anything about the conversation beyond what was stated in her affidavit. She could not, for instance, remember whether Mr Vlasic asked a question about the investment contemplated, or asked Mr Kotevski to clarify in any way the nature of his occupation as a builder. She could not recall whether any documents were handed over at the first meeting.
247 She said the second meeting occurred about a week later and at this meeting the form of the LoDoc Declaration was completed in her handwriting, apart from the signature. She said she gave this document to Mr Kotevski but could not remember whether he signed it in her presence.
248 Asked by Mr Docker about the 12 documents exhibited to Mr Vlasic's affidavit, which she agreed collectively comprised the loan application, she said that on the document headed "Applicant's Declaration", she, at the second meeting, heard Mr Vlasic ask Mr Kotevski each of the 6 questions and she placed a cross in the "No" box against each question to correspond with the answer.
249 As to the Declaration Under the Consumer Credit Code, Ms Radanovic said that the date 28.11. 05 was in her handwriting but the signature "A Kotevski" was not, nor was the printed name "Alexander Kotevski", underneath the signature. She could not recall giving Mr Kotevski the document or seeing him sign it. She said that she could not recall seeing Mr Kotevski sign anything.
250 Asked about the "Verification of Borrower - 100 point check list" document dated 24 November 2005, exhibited to Mr Vlasic's affidavit, she said that it was her handwriting on the document apart from the signature of Mr Vlasic. She could not explain why a second slightly different Verification of Borrower form dated 28 November 2005 was exhibited to Mr Vlasic's affidavit but said that this too, apart from his signature was in her handwriting.
251 Ms Radanovic told Mr Connor that although she worked for Mr Vlasic until November 2008 and remained working in the same industry, he had never, after settlement of the loan, asked her to look for documents connected to the case.
252 The effect of Ms Radanovic's evidence was that all the documents purportedly signed by Mr Kotevski, which passed through the office of Milanex, may have been completed in the office and taken away to be returned, apparently signed, some time later. I asked her about this:
"Q. Why would any of these documents have left your office?
A. Because sometimes clients just want to see another broker and are shopping around for a better deal and they would take the application and some of them never returned."
253 In relation to the retention of documents after loan settlements, she told Mr Connor, "they could be thrown away", but said she was not involved in that process, which was looked after by Mr Vlasic.
254 Pressed by Mr Connor as to whether she had actually inspected Mr Kotevski's original driving licence she maintained that she had, despite the fact that the copy annexed to Mr Vlasic's affidavit appeared to have been faxed on 17 November 2005 by a company Huhao Trade Australia Pty Ltd. Her explanation that this document was faxed afterwards to replace a copy of the original licence, which had been mislaid, appears to be plainly wrong.
RELIABILITY OF MR VLASIC AND MS RADANOVIC
255 For a number of reasons, I do not regard either Mr Vlasic or Ms Radanovic as reliable witnesses. I formed the opinion that neither had an independent recollection of the events from November 2005 to January 2006 to which they deposed and instead were reconstructing what they thought occurred from documents.
256 When tested Mr Vlasic could not remember what in particular had occurred at either of the two meetings, which he said took place in his office in November 2005. He referred on more than one occasion to "clients" as encompassing both Mr Kotevski and Mr Micic and seemed to regard them as being in the same interest. He could offer no explanation for the fact that all the signatures on documents, purportedly signed by Mr Kotevski and exhibited to his affidavit, may have been forged. As to this, if, as seems probable, they were forged, I find it difficult to believe that if Mr Kotevski had, in truth, attended the office of Milanex twice in November 2005, some if not all of the documents would not have been signed by him while there.
257 Ms Radanovic purported to have quite a clear recollection of the conversation she recounted in her affidavit, yet when cross-examined could remember virtually nothing else about the meetings. In respect of the documents completed in her handwriting, it seems to me, inherently unlikely, that if Mr Kotevski were in her office she would not have had him sign them in her presence. Despite her firm denials, I am of the opinion that Ms Radanovic was mistaken in her evidence that she saw the original of Mr Kotevski's driving licence. It seems to me probable that Milanex only had the copy, faxed on 17 November.
258 What may seem a small matter has also influenced my opinion that Ms Radanovic did not obtain the information in the documents exhibited to Mr Vlasic's affidavit directly from Mr Kotevski. In the document headed "Applicants Personal Details", she has incorrectly recorded Mr Kotevski's telephone number and she has also incorrectly recorded as 10 years the period he lived at 3/3 Baxter Street, Kogarah. It is to me inconceivable that Mr Kotevski would have lied about these two matters, which would have been inconsequential to him, and almost as inconceivable that Ms Radanovic would have incorrectly recorded matters which she would have regarded as important. It is, I think more likely that she was relying on someone else for her information.
259 In assessing the reliability of Mr Vlasic in particular, it is also. I think, appropriate to take into account the manner in which he conducted the business of Milanex.
260 It would seem that in November 2005 it was obliged as a "finance broker" to comply with the Consumer Credit Administration Act by entering into a written contract with clients and preserving records for 7 years, neither of which it did. Moreover, Mr Vlasic seems to have made no record of his alleged meetings with Mr Kotevski and any notes taken by Ms Radanovic were, according to her evidence, destroyed.
261 Mr Vlasic's evidence as to his record keeping was very unimpressive. He suggested that contrary to the statute he destroyed records after each loan was made. He purported not to be able to find any records in answer to the subpoena served in 2008 yet was able to find the documents exhibited to his affidavit in 2009. He gave no convincing explanation for his inability to produce the original documents, which would have been of greater forensic assistance to Ms Novotny.
262 To my mind, his conduct in sending Mr Kotevski's two certificates of title to Fabian in an envelope unaccompanied by a covering letter and his failure to make any record of either receiving or sending those certificates of title reveals very lax business practice. Such laxity was of particular relevance in this case, where Milanex seems to have assumed a role which went somewhat beyond mortgage broker. Milanex seems to have collected the documents required by Fabian, for a reason unexplained, all the mortgage and loan documents for execution were sent to Milanex, and for a reason also unexplained, the cheque in favour of Mr Kotevski was sent to Milanex.
263 In assessing Mr Vlasic's reliability as a witness, I also regard, adversely to him, the apparently cavalier way in which he approached the task of identifying Mr Kotevski. Despite his signature on the form as the identifier, he did not perform the task himself, nor, in my view, did he or anyone in his office sight the original documents relied on.
264 Despite the imperfections, discrepancies and contradictions in his evidence, I prefer the testimony of Mr Kotevski in relation to his dealings with Milanex to the testimony of Mr Vlasic and Ms Radanovic. I think the probability is that Mr Kotevski attended the Milanex office only once, as he testified, in January 2006. On small factor which supports this conclusion is Mr Kotevski's initially faulty description of Milanex' office. He is, I think, more likely to have made a mistake that it comprised two rooms, having been there once for a short time only, than if he had been there three times, the first two for significant periods while important matters were discussed.
265 In my view, the probability is that the documents exhibited to Mr Vlasic's affidavit were prepared in Milanex' office, from information provided by Mr Micic; they were sent to or taken away by Mr Micic and subsequently returned apparently signed by Mr Kotevski. It is probable that each of those purported signatures was forged.
266 Although I have made adverse findings about the evidence of Mr Vlasic, I should add that, in my opinion, the evidence in the case stops short of establishing fraud on his part. There is no evidence that he sought to gain anything other than a commission from the transaction. It would not have been in his interests to promote a loan likely to go into immediate default.