Plaintiff/Defendant by Counterclaim v Defendant/Plaintiff by Counterclaim

1. On 13 March 2024, ANZ filed a summons seeking summary judgment for the debt and for possession of the Property pursuant to ss 61 and 63 of the Civil Procedure Act 2010 (Vic). The application was heard and determined by Steffensen AsJ on 18 June 2024, and her Honour delivered a ruling on 25 June 2024 (2024 Ruling) which gave summary judgment only for the Principal and not for the interest, fees and other charges provided for under the alleged loan agreement.[2]
2. In her decision, the Associate Judge was satisfied that the evidence established that ANZ had advanced the Principal to the defendant. The defendant also accepted that she was liable to repay the Principal.[3] It is the interest and fees that the defendant disputed that ANZ was entitled to, which the Associate Judge decided was an issue which could not be determined summarily.[4]
3. The Associate Judge was not satisfied that ANZ had established that it was entitled to the interest, fees and other charges under the alleged loan agreement. In particular, her Honour held that ANZ had not explained at that time, by reference to evidence, the discrepancy between the date of the Letter of Offer and the date the Letter of Offer was (on its face) executed.[5] Her Honour noted that the Letter of Offer was dated 19 July 2016 on the front page (being the date which ANZ said that the parties had entered into the Letter of Offer) but the execution page had a handwritten date under the defendant's purported signature of 20 June 2016. Further, the execution page also contained a handwritten date of acceptance by ANZ of 20 June 2016. It was on that basis that the Associate Judge was not satisfied that ANZ had established that there was an agreement between the parties as to the interest rate or the terms on which other fees and charges may be payable by the defendant.[6]
4. At that stage of the proceeding, the Associate Judge was not prepared to infer, on the state of the evidence at that time, that the reference to 'June' in the handwritten dates should have been a reference to 'July'. The Associate Judge foreshadowed that at trial ANZ may be able to produce evidence which shows the defendant agreeing to the terms as set out in the Letter of Offer dated 19 July 2016.[7] As I apprehend it, it was the unexplained discrepancy between the typed date on the front page of the Letter of Offer and the handwritten dates on the execution page which led Steffensen AsJ to conclude, on the summary judgment application and the evidence before her at that time, that ANZ had not established the terms of the alleged loan agreement.
5. Consequently, orders were made on 25 June 2024 by Steffensen AsJ which, inter alia, entered judgment for ANZ by ordering that the defendant pay ANZ the sum of $298,000, being the Principal. No order in favour of ANZ for possession of the Property was made at that time.

1. On 6 November 2024, ANZ filed a summons seeking that the defence and counterclaim which had been filed in October 2014 be struck out pursuant to r 23.02 of the then Supreme Court (General Civil Procedure) 2015 (Rules) because they did not comply with the Rules as to pleadings, and that on the basis that there would then be no defence on the Court file, judgment be entered for ANZ in default of defence.
2. The application was heard and determined by Steffensen AsJ on 4 February 2025 and her Honour delivered a ruling on 28 March 2025 (2025 Ruling).[8] In summary, her Honour struck out large parts of the defence and counterclaim except for the paragraph in the defence which put ANZ to proof of its claim against the defendant[9] and the paragraph in the counterclaim which alleged the defendant's signature on the Letter of Offer and Mortgage were forged and that those documents were backdated.[10] Her Honour also permitted the defendant to rely on a pleading in the counterclaim of unconscionable conduct provided that it was properly pleaded. Her Honour provided extensive guidance to the defendant on how to properly plead her unconscionable conduct claim.
3. The defendant was given a final opportunity to make an application for leave to file a revised defence and counterclaim. On 11 July 2025, the Associate Judge noted in the 'Other Matters' section of the order that the defendant declined to file a revised defence and counterclaim.

1. It is convenient at this juncture to mention that there are two letters of offer in evidence, as this was the focus of both the evidence and submissions at trial.
2. Earlier at paragraph 2 above, I referred to ANZ's reliance on a copy of a letter of offer dated 19 July 2016, purportedly bearing the defendant's signature, which I have been referring to as the Letter of Offer. ANZ relies on the copy of the letter which is at pages 1330 to 1337 of the courtbook, which is the copy of the letter that the defendant disputes bears her true signature (Disputed Copy of Letter of Offer). This is the copy which the defendant alleges she did not sign and that the signature purporting to be her signature is a forgery. ANZ's evidence is that the Disputed Copy of Letter of Offer was contained in its electronic records.
3. The other copy of a letter of offer is an exhibit to an affidavit sworn by the defendant's husband, Steven Trajkovski, on 21 July 2025 (Trajkovski July Affidavit). Mr Trajkovski deposes that this copy bears the defendant's true signature, and at trial the defendant accepted that this was her signature. I shall refer to this copy of the letter of offer, being the one located at pages 761 to 768 of the courtbook, as the Undisputed Copy of Letter of Offer.
4. It is apparent from examining the two versions of the letter of offer that the typed content of the two versions is exactly the same. There are no differences in the terms of the loan at all. However, it is also apparent on the whole face of the two documents (ie taking the execution aspects into account) that one is not a photocopy of the other. It was common ground at trial that one version being a photocopy of the other was not an explanation for the existence of two versions. Leaving aside the differences alleged in respect of the defendant's signature between the two versions, other handwriting on the two versions demonstrates that one is not a copy of the other. On the Undisputed Copy of Letter of Offer, there is a handwritten 'x' after the typed word 'Dated' above the place for the defendant's signature and no handwritten 'x' at the start of the dotted line marking the place for the defendant's signature. On the Disputed Copy of Letter of Offer, the handwritten 'x' does not appear after the typed word 'Dated' but does appear at the start of the dotted line for the defendant's signature. This is shown in the two figures below:

Figure 1: execution section of Disputed Copy of Letter of Offer:

Figure 2: execution section of Undisputed Copy of Letter of Offer:

1. I will deal later with the evidence regarding the two versions and the possible explanations for this, along with my findings on the topic. Unless it is necessary to distinguish between the two versions, hereafter in these reasons I will refer to the letter dated 19 July 2016 as the Letter of Offer.

A.5 Appointment of amicus curiae and McKenzie friend

1. In the 2024 Ruling and 2025 Ruling, the Associate Judge noted that the defendant is Vietnamese and spoke limited English.[11] At the hearings before the Associate Judge, the defendant was assisted by Mr Trajkovski. Leave was granted at those hearings for Mr Trajkovski to speak on behalf of the defendant.
2. In the 2025 Ruling, the Associate Judge foreshadowed that the Court may on its own motion appoint an amicus curiae to act as a contradictor to assist the Court at the trial.[12]
3. On 27 August 2025, I made an order that the defendant may be assisted at trial by Mr Trajkovski as a McKenzie friend and that without leave, Mr Trajkovski could not address the Court. I also informed the defendant that she must ensure that a certified interpreter is present at the trial to interpret for her.
4. On 29 August 2025, I made an order referring a request to the Victorian Bar Pro Bono Assistance Scheme for pro bono assistance by a barrister. The purpose of the request was for a barrister to act as amicus curiae to assist the Court by appearing at the trial to ask questions of witnesses and make submissions. The role of the barrister was not to represent the defendant. On 31 August 2025, the Court was informed that Mr Carl Möller SC had accepted the request. The Court is most grateful for the willingness of counsel to take on such roles and thanks Mr Möller SC for his assistance.

1. The trial commenced on 6 October 2025, however the defendant did not have an interpreter present. I adjourned the trial until the next available date, 6 November 2025, and made directions to ensure that the defendant arranged for a certified interpreter to be present for the trial.
2. There had not been any pre-trial orders made for witness outlines or statements, or for written outlines of submissions.
3. At trial on 6 November 2025, the plaintiff made comprehensive oral opening submissions, including taking the Court to the main documents in the courtbook on which it relied. The defendant and Mr Möller SC chose not to make opening submissions.
4. All lay evidence was given orally, without any witness outlines or witness statements being ordered or provided. There were some affidavits in the courtbook to which some of the witnesses were taken.
5. ANZ called Ezra May and Ha Thanh Nguyen (referred to herein as Ms Ha Nguyen, noting that she is not related to the defendant). Mr May is a Senior Relationship Manager, Customer Financial Resolution at ANZ. Ms Ha Nguyen is a former employee of ANZ (having worked there from 2006 until she left in 2020 to take up employment closer to home at Commonwealth Bank and since 2024 has been employed by NAB). She was the main ANZ employee who interacted with the defendant and her husband in respect of the loan, and was subpoenaed by ANZ to give evidence at trial.
6. The defendant gave evidence and also called Mr Trajkovski to give evidence.
7. Both parties filed expert evidence which examined the defendant's signature on the Disputed Copy of Letter of Offer and Mortgage to respond to the defendant's allegation that her putative signatures on those documents had been forged.
8. The defendant relies on the expert report prepared Mr John Ganas of QD Forensics dated 17 September 2024. ANZ relies on the expert reports prepared by Dr Tahnee Dewhurst of Acari Consulting dated 14 August 2025 and 24 September 2025, the latter of which responds to Mr Ganas' report.
9. At the conclusion of evidence on 7 November 2025, ANZ's counsel made comprehensive oral closing submissions. Although the trial had been fixed for 2 days, it was clear by that point that an additional day was required. I adjourned the trial to 13 November 2025 rather than use the hour or so left at the end of 7 November, as I wanted to provide time for the defendant to process ANZ's submissions and prepare her own, and I made sure she had access to the transcript. On the final day, the defendant and Mr Möller SC made oral closing submissions, and ANZ made a short oral submission in reply.
10. As already noted, the defendant chose to represent herself at trial. On numerous occasions, this Court and the Court of Appeal have provided guidance as to the nature of the assistance which trial judges ought provide to unrepresented litigants.[13] I briefly summarise this guidance below.
11. The trial judge must ensure procedural fairness in the conduct of the trial. What a judge must do to assist an unrepresented litigant depends on the litigant, the nature of the case and the litigant's intelligence and understanding of the case. The judge should not become the advocate of the unrepresented litigant, as the judge must maintain the reality and appearance of judicial neutrality.[14]
12. Referring to the earlier decision of Doughty-Cowell v Kyriazis,[15] in Turner v Norwalk Precast Burial Systems Pty Ltd,[16] the Court of Appeal described the collation of relevant principles as follows:[17]

(1) Fairness is not an abstract concept. When one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.

(2) The practical question is whether the party in question was given a reasonable opportunity to present his or her case and advance submissions in support, and to know the case to be advanced by the opposing party and to make submissions in opposition to that case.

(3) What is reasonable for this purpose will necessarily depend on the circumstances. Matters to be taken into account will include:

• the nature and complexity of the issues in dispute;
• the nature and complexity of the submissions which the party wishes to advance;
• the significance to that party of an adverse decision; and
• the competing demands of the time and resources of the Court.

(4) The question to be asked is whether the party (represented or unrepresented) was given a reasonable opportunity to advance his or her own case and to be informed of and respond to the opposing case.

(5) The key difference with respect to unrepresented litigants is the need for the Court to assess the capacity of an unrepresented person to formulate, and articulate, the case which they wished to present. As we said:

The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant's verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to understand the litigant's case.

1. The approach I took to the defendant's unrepresented status was informed by these principles.
2. Insofar as this defendant is concerned, it was readily apparent that while she spoke a small amount of English, it was very much her second language. Although she had the assistance of her husband, his evidence was that his ability to understand and speak Vietnamese was rudimentary. At directions hearings over which I presided and the first day of trial on 6 October 2025, the defendant herself said very little and Mr Trajkovski was permitted to address the Court on her behalf. At earlier hearings before Steffensen AsJ, the defendant sought and was permitted to have Mr Trajkovski address the Court on her behalf. It is also clear from documents filed by the defendant in the proceeding that these were prepared for her by Mr Trajkovski.
3. It was readily apparent that for the trial, she required the assistance of a certified interpreter, and the trial did not substantively commence until she had that assistance. The same interpreter was present throughout the duration of the trial on 6, 7 and 13 November 2025. She translated the trial for the defendant, covering all submissions, interactions between Bench and Bar Table, and questions and answers put to witnesses. During the trial, I ensured that matters progressed at a pace at which the interpreter and defendant could keep up. Although I do not understand the Vietnamese language, I was very impressed with the quality of the interpreter's services and her ability to keep pace with all that was being said. I am amply satisfied that the defendant was able to understand and participate fully in the trial.
4. At the directions hearing on 27 August 2025, I explained how the trial would proceed, including the processes by which evidence could be adduced. On both 6 October and 6 November 2025, I explained the trial procedure to the defendant and her husband. During the course of the trial, where I had the impression that the defendant had not understood something or I thought it likely she would not understand (for example, a legal concept such as non est factum, which was referred to by ANZ's counsel), I explained things to her.
5. At trial, the defendant questioned witnesses, gave evidence, and made closing submissions. In my view, the defendant well understood her case and what issues she wished to cover and the responses she wanted to make. Her questions of witnesses, her own evidence and her submissions amply demonstrated this. While at times she asked particular witnesses questions that they would be incapable of answering (such as asking the experts why there were 2 versions of the letter of offer), this was a result of her lack of legal training and not due to any misunderstanding of her case. While I am sure that the defendant would have benefitted from independent legal advice and assistance, which she had been given every opportunity to obtain but had refused, I am confident that she presented her case at trial as well as she was able to. Some of the defendant's claims had earlier been struck out, and some of her evidence, questions to witnesses and submissions appeared to be directed to those claims. However, I did not prevent her from giving that evidence, asking those questions or making those submissions. Rather, I took the view that it was better for me to distil the evidence and submissions insofar as these were relevant to the issues at trial at the time of preparing my judgment instead of preventing the defendant from presenting her case in the way she wished to. While Mr Möller SC's role was not to represent the defendant, it was clear to me that in performing the role of amicus curiae he questioned witnesses and made submissions that included aspects of the defendant's case, presumably so that the Court had as much information about those matters as possible.

(a) a statement of claim dated 8 December 2021 with its writ of the same date;

(b) an amended statement of claim dated 10 September 2024;

(c) a defence to counterclaim of 10 October 2024, dated 25 July 2025 and filed that date;

(d) a further amended statement of claim dated 17 April 2025; and

(e) a document called further amended statement of claim dated 1 September 2025, which is in fact the second further amended statement of claim. This was the current version of the statement of claim at trial.

1. In its second further amended statement of claim filed on 1 September 2025, ANZ alleges that on or about 19 July 2016 it entered into an agreement in writing with the defendant to provide a loan in the sum of $298,000. ANZ alleges that the agreement was signed on 20 July 2016 and that the handwritten date next to the defendant's signature on the agreement erroneously refers to 20 June 2016. ANZ's claim is that the loan it gave the defendant is governed by the terms referred to in the Letter of Offer dated 19 July 2016.
2. ANZ contends that the key terms of the loan agreement between it and the defendant were as follows (Alleged Loan Agreement):

(a) ANZ would provide a loan facility to the defendant in the sum of $298,000;

(b) interest would be payable on the loan at ANZ's business mortgage index plus a margin of 1.67% per annum;

(c) the defendant must make monthly payments of interest only on the loan for a period of three years and thereafter monthly payments towards the principal debt for a period of 12 months;

(d) the defendant must pay any costs incurred by ANZ in connection with enforcing its rights under the loan;

(e) the defendant must pay ANZ a loan administrative charge of $187.50 per quarter;

(f) the defendant must pay interest on any amount that is not paid when it is due, together with late payment fees;

(g) a failure to make any payment due under the agreement constitutes an event of default under the agreement;

(h) in the event of a default, ANZ may give written notice to the defendant that the total amount due under the agreement will become due and payable immediately;

(i) the defendant agreed to provide security in support of all amounts payable under the loan, specifically, a first registered mortgage over the property situated at Unit 22, 39 Eucumbene Drive, Ravenhall VIC 3023; and

(j) the defendant charged her interest in the Property in favour of ANZ as security for the money lent under the agreement.

1. ANZ further alleges that by a mortgage in writing between the defendant and ANZ dated 20 June 2016 and registered with the Registrar of Titles, the defendant mortgaged her entire interest in the property to ANZ to secure payment of the loan, including all monies owing to ANZ in relation to the loan. This is the Mortgage referred to above.
2. ANZ alleges that on or about 12 March 2021, the defendant was in breach of the Alleged Loan Agreement and Mortgage when she failed to pay on time the payments that were then due under those instruments. On that day, ANZ issued to the defendant a notice of default and notice to pay the arrears. The notice gave the defendant 42 days to remedy the default by paying the arrears. The notice also informed the defendant that if the default notice was not complied with, then the entire balance of the loan would be due and payable and ANZ would sell the Property. The defendant did not remedy the default.
3. ANZ further alleges that on 4 May 2021, it issued to the defendant another demand and notice to pay, demanding payment for all monies owed to ANZ pursuant to the Alleged Loan Agreement and Mortgage. The notice further informed the defendant of ANZ's intention to sell the Property pursuant to the Mortgage if the demand was not complied with. The defendant also did not remedy the default and consequently ANZ contends that it is entitled to possession of the Property.
4. In its statement of claim filed with the writ, ANZ alleges that as at 1 December 2021, the defendant was indebted to it for the sum of $391,882.14, comprising of the Principal, $93,882.14 in interest, charges, fees and expenses and interest. The fees and charges included a loan administration charge, monthly late payment fees and quarterly loan administration charges, along with enforcement expenses. ANZ also claimed interest on that sum of $391,882.14 accruing from 1 December 2021 to the date of payment at the then rate of 5.78% per annum (being a daily rate of $62.05 per day).
5. As at 17 April 2025, with the filing of a further amended statement of claim on that date, the amount of interest claimed from 1 December 2021 to 17 April 2025 was $116,987.18. That iteration of the statement of claim contained at Schedule B a table setting out the interest calculation, along with the interest rates applicable to the various periods, which had increased over that time. The only difference between the second further amended statement of claim and the further amended statement of claim was the allegation of a charge as set out in paragraph 44(j) above, along with consequent alternative relief for the declaration of an equitable charge and an order for judicial sale.
6. At the time of trial, ANZ produced an updated Schedule B setting out the interest from 1 December 2021 to 6 November 2025 calculated on $391,882.14, which by then was $137,682.33. Accordingly, at trial, ANZ sought judgment for the following:

(a) payment of $93,882.14, being the amount owing as at 1 December 2021 less the Principal, which it already had judgment for;

(b) payment of $137,682.33, being interest on the total amount owing as at 1 December 2021 to 6 November 2025;

(c) possession of the Property; and

(d) costs on an indemnity basis.

1. While the amount sought in sub-paragraph (a) above includes fees, charges and expenses, ANZ stated that it did not seek the fees otherwise applicable after that date and these had not been included in sub-paragraph (b) above.

(a) a defence dated 12 April 2023 and filed on that date;

(b) a defence dated 31 May 2024 and filed on 21 October 2024;

(c) a counterclaim dated 10 October 2024 and filed on that date; and

(d) an amended defence and amended counterclaim dated 1 September 2025 and filed on that date (pursuant to leave granted by me on 27 August 2025). This was the version of the defence and counterclaim current as at trial. The amended defence and amended counterclaim does not show the differences between the previous iterations of the defence and counterclaim.

1. Below, I summarise the earlier iterations of the two defences and counterclaim, before moving on to the current pleading.

B.2.1 The defence dated and filed 12 April 2023

1. The defence filed on 12 April 2023, alleged ANZ engaged in unconscionable conduct in filing this case and claiming to possess a valid security over the Property. It also alleged that the mortgage security cannot be valid as it is 'tied to an obligation that required the defendant to contravene the law in order to meet the obligation'. It also requested that the proceeding be moved to the 'Common Law jurisdiction, in the interest of natural justice'.
2. This version of the defence puts ANZ to proof of its claim and pleaded that ANZ must produce the original blue wet ink signature document.
3. The defence went on to make a number of allegations, most of which are incoherent, including that:

(a) ANZ and its lawyers have contravened the Australian Constitution and have committed treason;

(b) Banks are 'a corpse, a dead entity, it has no rights, unlike the inherent rights of a natural person'.

That piece of paper that the plaintiff obtained by deception, contains the defendant's pledge, that pledge is the money, that is just as much money as any other money ever used to represent the value, that is really what we are we mean when we use the word money, the defendant has not dishonored her pledge, the plaintiff created an unfair and unreasonable situation in order to make financial gain.

B.2.2 The defence dated 31 May 2024 and filed 21 October 2024

1. In the defence dated 31 May 2024 and filed 21 October 2024, the defendant pleaded that she did not consent to the matter being 'presided under [the] commercial division, doing so would deny the defendant the right to equitable remedy'. Further, 'the Mortgage Recovery List implies that the plaintiff has contributed something material to recover, the facility is by legislation defined as intangible'. At the end of this defence, the defendant reproduced parts of a Notice to the Profession issued by this Court regarding the Mortgage Recovery List. She went on to plead that:

The issue at hand occurred prior to the existence of the mortgage recovery list, if there was a valid agreement, the date of that agreement was prior to the unconstitutional establishment of the mortgage recovery list, there is no valid agreement due to the conduct of the plaintiff, there is no cause or controversy that would warrant and favor the plaintiff initiating proceedings in a court.

1. At paragraph 3 of this defence, the defendant pleaded that she 'conditionally accepts all of the plaintiffs claims upon the proof of those claims in a court of competent jurisdiction and operation by law'.
2. This defence also alleged that ANZ had engaged in an abuse of process and perversion of justice because:

[ANZ] is forbidden from owning land by Mortmain statutes and has no legal claim to land, the records of the defendants statement clearly depicts an account showing a balance of ($0.00) zero dollars on the first line of activity and (-$298,000) minus two hundred and ninety eight thousand dollars on the very next activity line, according to account keeping standards, this does not constitute a contribution that can be identified, not does it give rise to a equitable claim for the plaintiff.

[ANZ] does not have any rights, rights come with responsibilities, [ANZ] is the corporate veil that has been specifically created for the avoidance of responsibility, rights without responsibility would be a licence to cause harm.

1. Further, the defendant also claimed that ANZ's attempts at obtaining summary judgment were an abuse of process because among other things ANZ has acted in bad faith and seeking to unfairly expediate the legal process to the defendant's detriment.
2. Allegations were also made that ANZ had:

engaged in 'forgery, fraud, misrepresentation and malfeasance' and that 'it would be unjust enrichment at the demise of an innocent party'.

B.2.3 Counterclaim dated and filed 10 October 2024

1. The counterclaim filed on 10 October 2024 made numerous allegations against ANZ.
2. Those allegations include:

(a) ANZ is a 'creature of statute, it is not a material thing' and 'is restricted from owning land or real property'.

(b) ANZ 'are using smoke and mirrors to cast aspersions, attempting to lead the [defendant] into tacit consent'.

(c) 'Statutes of mortmain forbid [ANZ] from owning or holding land or real property, private bank charters providing only the option of holding chattels, paper property for the purpose of recovering what is owed and for profit'.

(d) ANZ is attempting to 'mislead the court and commit fraud', in filing an application in the commercial division of this Court under the 'recovery list',. ANZ is not entitled to recover anything material as they have not contributed anything material.

(e) ANZ, 'their legal representation and the court [are] using the threat of fear to enforce securities, fear mongering, the threat of using armed agents who have never sworn an oath to protect and serve the people, and the very institution that is supposed to be protecting our lives, will engage in activity that denies us equitable remedy, tramples over our dignity and then plans to send armed men who have no allegiance to us, to our homes, were the armed agents will contravene their oath to preserve the peace and believe they have a right to use force'.

(f) ANZ 'is forbidden from owning land or real property, and is even forbidden from taking securities for homes'.

(g) ANZ is relying 'upon assumptions, hearsay, innuendo, conjecture and forged signatures, counterfeit documents, incorrect references to parties and their capacity, incomplete account numbers'.

(h) 'The court and its agents have a duty to act in a honourable manner'. This court are to 'cease and desist from all actions that would result in unfair enrichment for [ANZ] and detriment to the [defendant]'.

(i) The statement of claim has not been brought in the correct name.

(j) Assumptions that the defendant is not a living sentient being and is a legal fiction are rebutted. Further, assumptions that ANZ has provided anything of equal commensurate consideration are rebutted. 'All presumptions and assumptions that [ANZ] is relying upon in order to obtain any benefit of unjust enrichment stand as rebutted'.

(k) The defendant alleges that ANZ's agents have forged the signature on and backdated the letter of offer and mortgage security. ANZ has also provided 'false information in the amended statement of claim' and there is 'no surety for the amended statement of claim'.

(l) ANZ has 'obtained irrevocable power of attorney without disclosure or informed consent from the principle'.

(m) ANZ has 'not contributed any equal consideration of commensurate value that could be considered adequate' and the 'agreement does not form a lawful contract between equal parties that have equal risk or capable of suffering detriment'. 'The principle of equal consideration is fundamental in contract law, requiring that both parties receive a fair and equivalent value in any transaction'. '[ANZ's] conduct in this case reflects a lack of adherence to this principle, as evidenced by the discrepancies in the account statements and the inadequate disclosure of transaction details'. Further, 'the absence of equal consideration is particularly concerning given the significant financial implications that arise from these discrepancies. [ANZ's] actions not only violate the principles of good faith and fair dealing but also cast doubt on the integrity of [ANZ's] agents.

(n) The defendant also alleges ANZ engaged in unconscionable conduct in making 'representations that the [defendant] relied upon that would now be to the detriment of the [defendant]'. ANZ 'is estopped from enforcing the mortgage or other terms of the agreement'. The defendant states that 'having done no wrong', she has an 'equitable right to indefeasible title, where there is evidence of malfeasance and forgery'.

(o) The defendant also referred to the 'Kable principle' which they state empowers the courts to 'strike down laws that, even though "legal" in the strict sense, circumvent rights and violate fundamental principles like fairness, due process, and natural justice. The Kable case reinforces this, as the law was declared invalid because it conflicted with the court's role as an impartial and independent adjudicator. The Kable Principle supports the view that courts must ensure laws do not undermine judicial integrity or violate the rights of individuals, even if passed by Parliament'.

(p) The defendant also alleges that her bank statement does not show a transfer of funds into their account. 'There is no record of [ANZ's] contribution and due to the existence of this statement, [ANZ] cannot provide evidence of [it's] contribution'.

(q) ANZ's conduct, 'characterized by deception and a lack of transparency, involved creating an account with no actual funds without the [defendant's] knowledge. To allow [ANZ] to profit from this misconduct while the customer endures significant hardship is fundamentally unjust'.

(r) The defendant also claims that ANZ cannot argue that the defendant should have known about its practices. 'Even today, many individuals are astonished to learn how certain banks operate, and it is unreasonable to expect [the defendant] to be aware of every unethical practice within the financial system. Such an argument would not only shift the burden of accountability onto the victim but also undermine the essential trust that is foundational to banking relationships'.

(s) The defendant also claims that if the court finds that ANZ has not suffered any real loss - 'having drawn a check from an account that lacked funds - then the customer should not be held liable for repaying a flawed loan. The just resolution is to invalidate the loan and security, freeing the customer from any obligation stemming from the bank's deceptive actions'.

B.2.4 The defendant's current pleading: the amended defence and amended counterclaim dated and filed 1 September 2025

1. I turn now to the defendant's current pleading. I note that leave was sought from me to file such a document, well out of the time stipulated by the Associate Judge. At the time that leave was sought, which was about 6 weeks prior to trial, there were aspects of the pleading which were still inadequate and I went through some of those with the defendant and Mr Trajkovski. Some of the matters I identified were addressed in the version which was filed, but others were not. For example, what are now paragraphs 25 and 28 were retained, despite me saying they should be deleted.
2. In the amended defence section of the current pleading, the defendant denies 'each and every allegation contained in' the statement of claim (the amended defence does not specify which iteration of the statement of claim).
3. Also in the amended defence section of the current pleading, the defendant alleges that:

(a) the Letter of Offer (ie the Disputed Copy of Letter of Offer) relied upon by ANZ is a forgery;

(b) she relies on the expert forensic report 'confirming the signature dates across the mortgage and Letter of Offer do not match, and all were written by the same person (not the Defendant)', and that 'the documents were either forged, backdated or fraudulently completed, without her knowledge or consent and therefore do not form a binding agreement';

(c) there was no valid, enforceable loan agreement formed between the parties;

(d) ANZ is not entitled to enforce the mortgage security or recover the alleged debt;

(e) the defendant was only presented with three pages for her signature on 20 June 2016 - being page 8 of the Letter of Offer, the Mortgage and page 8 of the loan application[18] and was not shown the rest of those respective documents;

(f) the defendant did not date any part of the Loan Application Form and the financial information in the Loan Application Form was completed by a representative of ANZ who had previously taken details from the defendant. The defendant did not review the completed Loan Application Form;

(g) the inconsistencies in the dating of the Loan Application Form (said to be 27 July 2016, 18 July 2016 and 8 July 2016) demonstrates that the document was backdated after its execution;

(h) ANZ has falsely asserted that the Letter of Offer was signed on 20 July 2016, which is not supported by evidence; and

(i) ANZ required the defendant to execute a lease agreement to lease the Property to her husband to fabricate rental income. ANZ has relied on the lease to claim that the purchase was exempt from GST;

1. In the amended counterclaim section of the current pleading, the defendant pleads that:

(a) ANZ has knowingly or recklessly relied on a forged and improperly assembled Letter of Offer (ie the Disputed Copy of Letter of Offer) to initiate these proceedings;

(b) ANZ mispresented the defendant's income and legal working status to facilitate the loan approval, in breach of ANZ's responsible lending obligations;

(c) ANZ required the defendant to sign a fabricated lease to her husband to artificially inflate serviceability, despite knowing the Property could not be lawfully leased to oneself;

(d) ANZ took a mortgage security before a valid agreement was completed and without providing a memorandum of common provisions;

(e) ANZ created a book entry loan without transferring the real funds to the defendant;

(f) the mortgage was executed before any valid agreement existed, rendering the instrument legally defective;

(g) ANZ's registered encumbrance over the Property's title is based on 'invalid, misleading and procedurally defective documentation';

(h) ANZ's internal notes confirm that the defendant had contributed over $189,000 towards the purchase of the Property. This contradicts ANZ's own statement of claim that no contributions were made.;[19] and

(i) the defendant has suffered loss and damage, lost time, economic disadvantage, and ongoing litigation stress.

1. By reason of the earlier rulings of Steffensen AsJ, the claims referred to at paragraphs 68(e) and 68(h) above are not able to be made: earlier iterations of these were struck out and leave to replead those al[20]gations was refused.20 I also note that unfortunately, the defendant did not follow the guidance given to her by Steffensen AsJ regarding the proper form of pleadings. Nonetheless, the current pleading is clearly an improvement on the earlier iterations.
2. In substance, the amended defence and amended counterclaim are inextricably linked: the defendant seeks to defend ANZ's claim on the basis that the Alleged Loan Agreement and Mortgage are not enforceable due to the Disputed Copy Letter of Offer being allegedly forged and due to ANZ's allegedly unconscionable conduct.

1. Following the summary judgment decision and the current pleadings, the key question for determination at trial is whether ANZ succeeds on the balance of its claim, being those aspects of its claim which were not determined by the summary judgment decision. Those aspects are the claims to payment of fees, charges and interest, and possession of the Property.
2. In order to answer this question, the following issues need to be addressed:

(a) Issue 1: Did the defendant sign the letter of offer and the Mortgage? This includes consideration of the defendant's forgery allegation.

(b) Issue 2: If the defendant did sign the letter of offer, has ANZ proven the Alleged Loan Agreement?

(c) Issue 3: If the defendant did not sign the letter of offer, what (if any) are the terms of the loan agreement between the parties?

(d) Issue 4: If the defendant did sign the Mortgage, has ANZ proven the Mortgage?

(e) Issue 5: If ANZ has not proven the Mortgage, should its alternative claim based on an equitable charge succeed?

(f) Issue 6: Do other matters raised by the defendant's amended defence and amended counterclaim (insofar as they are able to be pursued) mean that the Alleged Loan Agreement and/or Mortgage are unenforceable? In other words, does the defendant succeed on her unconscionability defence/counterclaim?

1. Before describing the experts' evidence, it is convenient first to explain in a little more detail the aspects of the disputed documents (being the Disputed Copy of Letter of Offer and the Mortgage) relevant to the experts' reports. Both documents contained the putative signature of the defendant; signatures which she denied were hers and which she alleges were forged. There were two handwritten dates on the execution page of the Disputed Copy of Letter of Offer, both being 20 June 2016, one under the defendant's putative signature and one in a box for bank use only. Figure 3 below shows an extract of the Disputed Copy of Letter of Offer in this regard. On the Mortgage, there was also a handwritten date of 20 June 2016, an extract of which is shown in Figure 4 below.

Figure 3: extract of Disputed Copy of Letter of Offer

1. In his report, Mr Ganas expressed the following opinions:

(a) he noted that the documents he examined were reproductions (ie copies), that the reproduction quality of them varied, however the overall reproduction quality was sufficient to undertake an examination. He said that while it was often difficult when dealing with reproductions to determine with certainty some finer features of writings, overall the quality here allowed reasonable inferences to be made;

(b) the specimen signatures he was given conformed to a general overall common model that displayed an expected range of natural variation, appeared fluently executed, and displayed a good degree of pen control; and

(c) the questioned signatures shared pictorial similarities with the sample signatures however they displayed differences in construction feature characteristics. He proffered 3 possible explanations for the differences observed between the questioned signatures and the specimen signatures, being:

(i) variations of the specimen writer's signature were not represented in the specimen group;

(ii) disguised signatures by the specimen writer; or

(iii) signatures not written by the writer of the specimen group signatures.

1. Mr Ganas concluded in his report that the defendant's signature on the Disputed Copy of Letter of Offer and on the Mortgage 'were not written by [the defendant] ... and are the product of simulation / forgery process'. He also concluded that the three handwritten dates appearing on the Disputed Copy of Letter of Offer and the Mortgage were written by the one author. He says nothing in his report about whether the author of the dates and of the signatures on those documents were from the same person, although in cross-examination he stated that it was not possible to compare a signature with numerals.
2. Dr Dewhurst's first report concluded that 'the evidence available... does not strongly support one proposition over the other with respect to whether the questioned signatures were or were not written by the writer of [the defendant's] signature specimens'. This conclusion was based on the following:

(a) the questioned signatures were modelled on the specimen signatures provided, 'sharing an overall gross pictorial similarity';

(b) the specimen signatures were 'simplistic formulations, executed with a high degree of intra-writer variability';

(c) the documents provided to Dr Dewhurst for her examination were: 'non-original, poor quality, possibly multiple generation copies, which can introduce distortions and mask the finer details of signature formations'; and

(d) the 'observation of both similarities and dissimilarities combined with, the simplicity of formation, variability of execution and poor-quality non-original documentation, precludes an expression of authorship, and the examination was inconclusive'.

1. In her second report, Dr Dewhurst reviewed Mr Ganas' report and was instructed to prepare a short supplementary report that included her views on how Mr Ganas' was able to come to a concluded view on the signatures despite having access to the same photocopied versions of the disputed signatures. Dr Dewhurst concluded that the divergence between Mr Ganas' opinion and her opinion predominantly arose from the differences in the specimen material provided for examination. She notes that they were not provided with the same specimen pool from which to conduct an examination and comparison. In this regard, Dr Dewhurst states that:

(a) she was provided with 21 signatures from which to conduct the examination and comparison, only 4 of which were included within the specimen pool provided to Mr Ganas;

(b) of the 21 specimen signatures she was given, 7 could be described as being of more simplistic execution;

(c) the specimen signatures provided to her exhibit:

a notable range of variation. This level of intra-writer variability indicates inconsistency with respect to the specimen writer's execution, which may impact the reliability of comparative analysis when assessing questioned signatures against a body of specimen material. The observed variability of execution suggest that caution should be exercised, as the broad range in formation may influence interpretive consistency in forensic examination.

(d) Mr Ganas was given 14 signatures from which to conduct the examination and comparison, one of which could be described as being the more simplistic style of signature form, however the quality of that signature image is of such poor quality as to almost warrant exclusion from the comparison process;

(e) the specimen pool given to Dr Ganas was not adequate or representative enough for the basis for an effective examination and comparison. It was a limited non-representative specimen pool that did not sufficiently capture the specimen writer's range of variation; and

(f) the specimen pool given to her contained a broader representative range of specimen signatures, allowing for a more comprehensive assessment of the specimen writer's range of variation.

1. On the first day of trial and before they gave their evidence, both experts were provided with an opportunity to confer outside the courtroom, as they had not done so beforehand (no orders had been made for the experts to confer). After conferring, Mr Ganas informed the Court that he wished to change the conclusion he had reached in his report to inconclusive, that is, he 'cannot form an opinion as to whether the signatures are genuine or whether they're non-genuine'. He stated that the extended range of specimen signatures he saw when conferring with Dr Dewhurst displayed some of the differences he had observed in the questioned signatures which were not present in the smaller sample of specimen signatures he initially examined. He agreed with Dr Dewhurst's observation that the specimen signatures she was given display a very wide range of variation and that the questioned signatures are quite simplistic in nature. Mr Ganas' evidence was that he had not been shown or given a copy of Dr Dewhurst's second report by the defendant until he conferred with Dr Dewhurst that morning.[21]
2. Neither party challenged the conclusions expressed at trial by the experts. During closing submissions, ANZ's counsel submitted that there was no reason not to accept both experts' evidence as both experts, by the time of their oral evidence, had reviewed a number of samples of the defendant's signatures and were unable to form a conclusive view as to the authorships of the signatures that the defendant alleges had been forged.

1. In addition to the oral evidence given by the lay witnesses, most of the evidence comprised documents contained in the courtbook.
2. I found Mr May to be an honest and credible witness who did not traverse beyond his limited involvement in this proceeding.
3. I will have leave my comments about the other lay witnesses to later in these reasons, including as to credibility, as it is preferable for me to describe the main aspects of their evidence first.
4. My approach to summarising the oral evidence in this case is as follows:

(a) I will begin by describing the main aspects of Mr May's evidence; and

(b) then rather than describing each of the other witnesses' evidence in turn before turning to the next witness, I will describe each of their evidence in respect of particular topics or events organised by those topics or events.

1. As mentioned, Mr May is a Senior Relationship Manager, Customer Financial Resolution at ANZ. He had given evidence throughout this proceeding regarding the defendant's loan with ANZ, including making an affidavit of documents for discovery purposes. Apart from this and retrieving documents and records from ANZ's systems, Mr May did not play a role in the underlying subject matter of this proceeding.
2. At trial, Mr May gave evidence as to the different ANZ systems which recorded the defendant's loan information and how he searched for and extracted documents which were relevant to the proceeding. He was taken to the documents in the courtbook which were business records he had extracted from ANZ's systems. I have not summarised each document here: rather, where documents are relevant to particular issues, I will deal with them (and Mr May's evidence, if necessary, including answers to questions put to him by Mr Möller SC where relevant) when discussing those issues.
3. Mr May confirmed the accuracy of the updated Schedule B referred to at paragraph 50 above.
4. Mr May also confirmed during his evidence that since about 2017, ANZ no longer keeps physical files of its customers' information. At that time, the physical customer files were scanned so that there were electronic copies of the documents in the files, and then the physical files were destroyed. Since then, all documents relating to customers are scanned and kept electronically and the physical documents destroyed.
5. Mr May gave evidence about ANZ's processes for considering and making loans and taking security. A completed loan application is assessed by the credit assessment team. If it is approved, then the loan documentation is prepared, to be signed and executed by the customer, such as a letter of offer, mortgage, and guarantees if required.
6. Mr May's evidence included the generation of letters of offer. Mr May said that the typed date on the front page of a letter of offer is automatically produced by the computer system when the letter is generated after the loan is approved.
7. In his evidence in chief, Mr May was taken to the discrepancy between the typed date and the 2 handwritten dates in the Letter of Offer in this case. Mr May stated that the typed date and the handwritten dates could not both be correct, because the Letter of Offer was produced on 19 July 2016 and so it could not have been signed the month earlier. Based on his knowledge of ANZ's systems, he believed the handwritten dates to be incorrect.
8. Mr May was cross-examined by the defendant, where the questions were focused on the location of the 'original' Letter of Offer bearing her 'wet-ink signature'. Mr May consistently answered that no original documents were kept, as all documents were scanned and only electronic copies retained.

E.2 Dealings between ANZ and the defendant and/or her husband regarding the loan before the substantive involvement of Ms Ha Nguyen

1. There are documents in the courtbook sourced from ANZ's business records concerning contact between ANZ and Mr Trajkovski from around December 2015 regarding the possibility of a business loan from ANZ to the defendant for the purchase of a commercial property at 'little boundary rd'. Mr Trajkovski's evidence is that he approached Peter Chung of ANZ about this loan because he was the manager regarding his current property that was part of a business partnership dispute. He says that he told Mr Chung that 'we were gonna purchase a property, my wife was gonna be um the borrower, and we wanted - I think it was about - we wanted to borrow $200,000.'
2. By email dated 18 December 2015, Mr Chung sent documents to Mr Trajkovski which were to be completed and returned. By email dated 20 January 2016, Mr Trajkovski sent documents to Mr Chung, stating:

if i have missed anything let me know

my wife is looking to borrow around 200,000 to cover gst and once she completes the bas then the gst will be paid back to the bank

1. Mr Trajkovski's evidence is that he filled out an 'ANZ Business Lending Application' form, which included a 'personal statement of financial position' form, for the defendant and that she signed it. This form was part of ANZ's records, it is signed and dated 6 January 2016 (January 2016 Form). The defendant's evidence is that her husband filled out the form, explained to her what was in it, that the information in it was correct, and that she signed the form. It is signed in two places: on the form itself and the personal statement of financial position (this part of the form is dated 7 January 2016).
2. The information filled on the personal statement of financial position section of the January 2016 Form included the following:

(a) in respect of assets said to total $248,000:

(i) ANZ accounts: $25,000

(ii) OFI accounts: $110,000

(iii) 2 motor vehicles totalling: $35,000

(iv) Superannuation: $3,000

(v) Home contents: $25,000

(b) in respect of liabilities, the form stated these were $0;

(c) average monthly income was stated as $5,000 gross, with $4,000 net; average monthly expenses were stated as $1,100, and the uncommitted monthly income was stated as $2,900.

1. By email dated 20 January 2016, Mr Chung forwarded the application to Ms Ha Nguyen, asking her to run with the application. He stated in the email that it was for 'purchase of a commercial property in wifes name', asked her to contact Mr Trajkovski and gave the latter's mobile number, and said that Ms Ha Nguyen would need to request 'tax returns and COS'. On 22 January 2016, Ms Ha Nguyen sent an email to Mr Chung saying that she had called twice with no answer. On 1 February 2016, Jessica Centorame of ANZ's Small Business Servicing team sent an email to Mr Chung saying that she had spoken to Mr Trajkovski who wants to follow up on the business loan application and Ms Centorame asked Mr Chung to call him.
2. It is unclear on the evidence whether this application was proceeded with, or somehow morphed into a later application as represented by the Loan Application Form, or whether the latter was a completely separate application. At best, Ms Ha Nguyen had a vague recollection of having seen the January 2016 Form. None of the witnesses were able to explain what had become of that application.
3. As best as I can ascertain, it appears to me that the intentions of the defendant and her husband changed over time in terms of what property was going to be purchased - the property referred to in ANZ's internal document as referred to above 'little boundary rd' is clearly not the Property that was ultimately purchased. The sale of land contract dated 15 June 2016 by which the defendant purchased the Property is in evidence and shows a purchase price of $425,000 plus GST. The amount sought to be borrowed appears to have been changed also, from $200,000 to $298,000.

E.3 Meetings between the defendant and Ms Ha Nguyen

1. Ms Ha Nguyen gave oral evidence about her meetings with the defendant. Her evidence was that she met twice with the defendant and that the first of these meetings was also attended by Mr Trajkovski. When it was put to her that there were three meetings between her and the defendant, she thought there were only two but could not rule out there being a third meeting. She was adamant that Mr Trajkovski attended only the first meeting she had with the defendant. That he attended only one of the meetings with Ms Ha Nguyen was consistent with the evidence given by the defendant and Mr Trajkovski.
2. The defendant's evidence was that there were three meetings between her and Ms Ha Nguyen.

1. Ms Ha Nguyen's evidence was that at her first meeting with the defendant, which she says was at ANZ's Footscray branch, she discussed the loan with them and filled out the Loan Application Form by asking the defendant questions and recording her answers on the form, which the defendant then signed. She said that she spoke Vietnamese and English with the defendant and Mr Trajkovski.
2. Ms Ha Nguyen was adamant that filling in the Loan Application Form and signing it occurred at this first meeting. She stated that she had a very clear recollection of that meeting as Mr Trajkovski made a clear and negative impression on her. She was pressed on why she formed this impression.[22] Ms Ha Nguyen stated that she had concerns that the defendant might be under duress and she wanted to look out for the defendant as a fellow Vietnamese woman, so she asked her questions to make sure that the defendant was making her own financial decisions. Ms Ha Nguyen said that she had been trained and taught about responsible lending.
3. Mr Trajkovski's evidence was that he attended only one meeting with his wife and Ms Ha Nguyen and that this was at ANZ's Footscray office. He agreed that Ms Ha Nguyen spoke English to him and Vietnamese to the defendant. He rejected the proposition that the Loan Application Form was signed at this meeting. He says that at the first meeting he and the defendant discussed with Ms Ha Nguyen about covering the cost of the GST and was told by her that an overdraft would be issued to cover that. He also said that Ms Ha Nguyen spoke to them about mortgage insurance and suggested they speak to another bank officer about that.
4. During questioning by Mr Möller SC, Mr Trajkovski referred to a discussion with Ms Ha Nguyen about the need for a lease, saying that Ms Ha Nguyen had told them that the defendant's income was not enough and that they also needed to complete a lease to secure the deal. However, in answer to questions from Mr Buchanan, he could not recall whether that discussion was at that meeting. He accepted the proposition put to him by Mr Buchanan that the discussion about the lease or being stretched a bit thin would only have made sense for it to have occurred at the meeting he attended and that the meeting was discussing the loan and their finances. During cross-examination, Mr Trajkovski accepted that he was not in a position to say what had been discussed in Vietnamese between the defendant and Ms Ha Nguyen, as his skill level in Vietnamese was insufficient for that, and he accepted that it was 'completely plausible' that Ms Ha Nguyen might have asked the defendant questions to obtain information that would have been inserted into the Loan Application Form. Mr Trajkovski was adamant that Ms Ha Nguyen did not fill out the form at that meeting and did not have the defendant sign it.
5. The defendant's evidence was that at the first meeting, which she says was at ANZ's Footscray office, Ms Ha Nguyen spoke to her in Vietnamese and to her husband in English. She says that the Loan Application Form was not filled out or signed at that meeting, that Ms Ha Nguyen did not ask her questions about her income etc (ie the questions which would have been necessary to fill out the form), and that they only discussed the GST.
6. None of the witnesses were clear about the timing of this first meeting. The defendant did not mention it, Mr Trajkovski's evidence about timing was unclear but he accepted that the first meeting could have been on 8 July 2016, and Ms Ha Nguyen could not recall the date.

1. Ms Ha Nguyen's evidence was that she had a second meeting with the defendant, which was not attended by Mr Trajkovski, for the defendant to sign the Letter of Offer and Mortgage. She could not recall whether this second meeting was at ANZ's Footscray branch or its St Albans branch.
2. Her evidence was that she took to that meeting a bundle of documents, being two copies of the Letter of Offer and a copy of the Mortgage, along with copies of the terms and conditions brochures for the loan. She said that she explained the terms of the loan to the defendant. She says she explained to the defendant 'the term, condition, the repayment, how long the loan last... how much she has to pay... and if the interest rate [stayed] the same... she would be paying of the loan in 15 years.'
3. Ms Ha Nguyen's evidence was that she had the defendant sign both copies of the Letter of Offer and the Mortgage, and that one signed copy of the Letter of Offer along with the terms and conditions documentation was placed into a 'big envelope' and given to the defendant to keep for her records.
4. Ms Ha Nguyen's evidence was that the handwritten dates on the Letter of Offer and on the Mortgage were written by her. Her evidence was that the typed date in the Letter of Offer was automatically populated when generated and that this was presented to the defendant for signing. When asked about the discrepancy between the typed date and the handwritten dates, she acknowledged the discrepancy and proffered the explanation that she had 'incorrectly put June instead of July. It should be July.'
5. When taken to the Mortgage and asked whether the handwritten date of 20 June 2016 could be the wrong date, Ms Ha Nguyen said 'I think I put in the wrong month'. When asked what she thought the correct month was, she said 'July'.
6. The defendant's evidence was that her second meeting with Ms Ha Nguyen was at the Footscray office. Her evidence was that it was at this meeting that Ms Ha Nguyen asked her about her personal background and things like what car are you using and the value of it, and she put those down on the form, but there was no signing done that day. She subsequently said that Ms Ha Nguyen wrote things down on a paper but she wasn't sure what that paper was.
7. The defendant's evidence was that her third meeting with Ms Ha Nguyen was at the St Albans office. She says that there were three single pages on Ms Ha Nguyen's table and that these were given to her to sign, that she did not know what these pages were, Ms Ha Ngyuen did not say what the pages were, and they were not explained to her, she was just told where to sign. She says that she did not see the other pages of the documents. She denies that Ms Ha Nguyen explained the terms of the loan to her: she says that the banker 'didn't give me any explanation about the terms and conditions.' She says that she was not given any documents to take away with her.

1. The defendant gave oral evidence that the loan was taken out so that her husband, Mr Trajkovski could buy the Property to conduct a car repair business, Dynofab. The business did not get off the ground. The defendant said that the Property is now being used for storing her husband's stuff and that the two of them also live in the Property. When asked about how she obtained the funds to purchase the Property, the defendant said that she and her husband had contributed about $200,000, which was made up of her husband's business income and her income from work.
2. Ms Ha Nguyen gave evidence that at the first meeting, she filled in the Loan Application Form, by interviewing the defendant about her financial situation, and filled in the form with her. She says that she saw the defendant sign the Loan Application Form. She says that the handwritten name in the box for 'printed name' under the signature is not her handwriting, but the handwritten date looks like her writing.
3. The defendant's evidence about this topic is set out at paragraph 112 above.
4. When Mr Möller SC took the defendant to the Loan Application Form and asked her if the signature on it was her signature, she said that it 'looks like my signature but I'm not - I cannot recall exactly, 'cause Ha gave me three documents to sign on but I don't remember which one is which one'.
5. Insofar as the filled in content of the Loan Application Form is concerned, it includes the following:

(a) the borrower's name is listed as 'Hau Thi Nguyen T/AS Dyno Fab';

(b) the question 'Are you a permanent Australian resident?' is ticked 'Yes';

(c) the business is described as a holding company, no trading;

(d) the requested loan amount is $340,000; and

(e) the security for the loan is the Property, with estimated value of $425,000.

1. The personal statement of financial position section of the Loan Application Form includes the following filled in information:

(a) assets:[23]

(i) bank account: $150,000;

(ii) Mazda 2008 motor vehicle: $35,000;

(iii) furniture/household goods: $35,000;

(iv) superannuation: $3,000;

(b) total assets: $223,000;

(c) average monthly income of $5,000 gross, $4,000 net;

(d) average monthly living expenses - food, personal, clothing $1,000;

(e) housing loan repayments and rent/board: $0 (husband's home);

(f) average monthly expenses for other loan repayments, finance lease/hire purchase repayments, credit/dept store cards, rates/water/council, gas/electricity/phone and vehicles petrol: $0;

(g) total net monthly income: $4,000;

(h) total net monthly expenditure: $1,000; and

(i) uncommitted monthly income: $2,900.

1. Ms Ha Nguyen's evidence is that she asked the defendant if she was a permanent Australian resident and that the defendant said yes. On the other hand, the defendant says that she was not asked this question.

1. As set out above, Ms Ha Nguyen's evidence was that there were two copies of the Letter of Offer which were signed by the defendant and upon which Ms Ha Nguyen filled in the dates on the execution page.
2. Ms Ha Nguyen was asked about this and she explained that 'the bank always printed two [copies], one for the customer and one for the bank to keep.' She would usually get the customer, in this case the defendant, to sign both copies of the Letter of Offer in front of her. The defendant was given one copy to take away with her and ANZ kept the other copy.
3. Somewhat different explanations for the existence of two versions have been proffered over time by or on behalf of the defendant.
4. In the Trajkovski July Affidavit, Mr Trajkovksi deposes that the Undisputed Copy of Letter of Offer was mailed to the defendant after settlement (presumably this means the settlement of the purchase of the Property).
5. During cross-examination by Mr Buchanan, Mr Trajkovski was taken to the transcript of the hearing on 18 June 2024 before Steffensen AsJ, which was the hearing of the summary judgment application. He told the Associate Judge that he didn't have a copy of the letter of offer, that he'd never received one, and that the first time he received one was in an email when these proceedings started a few months ago. When this was put to him at trial, Mr Trajkovski says it was the Disputed Copy of Letter of Offer which he meant he had not received. When he was challenged on this response, he said that he discovered 'that second letter of offer in our documents around about or a few months after that. When I went searching through our documents.' He says that this was after the summary judgment hearing that he went looking through their documents. He says that the Undisputed Copy of Letter of Offer was mailed to them, that he remembered seeing it and didn't think anything of it, but when 'this issue' came up is when he started to search for it. His evidence wasn't clear as to what he meant by 'this issue'. When pressed, he says that he assumed the document came in the mail, that he had later asked the defendant if she had brought it home with her after it was signed and she said she had not brought any documents home from any visits with Ms Ha Nguyen.
6. The copy of the Undisputed Copy of Letter of Offer in the courtbook is an exhibit to the Trajkovski July Affidavit. During the defendant's evidence, she stated that she still had, at home, the Undisputed Copy of Letter of Offer that her husband had found. Mr Möller SC asked her whether she was able to bring that to Court, and he subsequently called for that to be produced. I made sure that the defendant understood she needed to bring it to Court with her when the trial resumed on 13 November, and also told all parties that if need be they could make supplementary submissions about that document.
7. The defendant produced the Undisputed Copy of Letter of Offer to the Court on 13 November 2025, which I inspected and then handed to Mr Buchanan and Mr Möller SC for them to inspect. To my eye, it was the same as the version that was in the courtbook, save that it did not have the courtbook page numbering or the additions that had been made to the version in the courtbook for it being an exhibit to an affidavit. The defendant drew to my attention that the ANZ logo on the first page of the document produced that morning was in black and white. She handed up another document, being a letter from ANZ to Mr Trajkovski which was unconnected to this case (MFI Letter). The ANZ logo on the MFI Letter was partly blue in colour. The defendant sought to rely on it to establish a contention that original ANZ letters had a partly blue logo rather than black and white, so as to contrast it with the paper version of the Undisputed Copy of Letter of Offer which she had produced that morning, which she said was a copy. ANZ objected to me admitting the MFI Letter into evidence as it had not had an opportunity to put this to its witnesses. After discussion, I said that I would take it and mark it for identification, submissions could be made about it, and I would determine its admissibility when writing my reasons. Mr Buchanan and Mr Möller SC were happy with that course.
8. In her evidence, the defendant was adamant that the signature on the Disputed Copy of Letter of Offer was not hers. Her evidence was that the signature on the Undisputed Copy of Letter of Offer was her signature. Some of her evidence about signing the document was unclear: she said she signed documents at the bank with a blue pen and that if she looks at the signature in blue she can recognise that it is her signature. However she was then asked if she signed the three pages at the bank with blue ink, to which she answered that she didn't know what was the colour of the ink but Ms Ha Nguyen gave her the pen to sign.

1. Ms Ha Nguyen's evidence is that the defendant signed the Mortgage at the second meeting when she signed the Letters of Offer, that she witnessed the defendant signing the Mortgage, and that she was the person who handwrote the date of 20 June 2016 on the Mortgage. As set out above, her evidence was that June was incorrect and that it should have been July.
2. In her questions to Ms Ha Nguyen about the Mortgage, the defendant attempted to undermine Ms Ha Nguyen's evidence about witnessing her signature by contending that she (ie the defendant) had not seen Ms Ha Nguyen sign the document. She also referred to this when being cross-examined by Mr Buchanan.
3. The defendant's evidence as to whether she signed the Mortgage was confusing. In cross-examination, Mr Buchanan asked her if the signature on the Mortgage was hers and she said that 'It's look like, but the letter N at the end, if it were mine, it often longer than letter of longer. Yes'. Mr Buchanan made several valiant attempts to clarify her answer, which she dealt with by saying she didn't know what were the three documents she signed. The upshot of her evidence was that the signature on the Mortgage looked like her signature. In her evidence, she did not deny that she had signed it or accept that she had.

E.7 Impressions of the other lay witnesses and matters of credit

E.7.1 General principles for evaluating witnesses' evidence

1. In Timeless Sunrise Pty Ltd v BigJ Enterprises Pty Ltd (No 10),[24] Delany J made a number of observations, drawn from a number of cases, regarding assessing witness evidence, including determining whether the witness is telling the truth. These included the following:

(a) memory is fallible and is a reconstructive process;

(b) findings on credit should not be made globally - a witness may reliably recount some matters and not others;

(c) contemporaneous statements and documents are likely to be more accurate than a recollection of events;

(d) a witness' credibility and truthfulness can be tested by reference to objective fact, particularly documentary evidence, his/her motives, and to probabilities;

(e) evidence given against interest or which is inherently probable is more convincing;

(f) negative facts must be proved - disbelieving a witness about one matter does not make the inverse of it true, although inferences may arise supporting the alternative state of affairs; and

(g) it may be the case that some issues cannot be resolved on the evidence at the court's disposal, particularly where it is purely one witness' word against another's. In particular, a trial judge is not always bound to make a finding one way or the other - rather, in appropriate cases, the judge can decide this on the basis that the party bearing the onus has failed to discharge it.

(a) caution should be exercised in drawing conclusions about truthfulness or credit solely by reference to the demeanour of a witness. In this regard:

an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.[25]

(b) in the context of a case where the relevant matters occurred some eight to ten years before trial, in Euromark Ltd v Smash Enterprises Pty Ltd,[26] Lyons J made these observations:

It is difficult to recall with any precision what someone said, what someone heard or what someone believed all that time ago. Common experience tells us that the more significant the issue is to a person, the more likely it is that he or she will recall the event, even after a long period of time. However, it is important to acknowledge that, in such circumstances, a person's recollection can be coloured by feelings, emotion and personal interest.[27]

...

Judges are not given any special powers to discern whether a particular witness is not telling the truth. Consistent with practice and common sense, I consider the surest test to determine credibility and reliability in any criminal or civil case is to assess[28]

the inherent consistency of the witness' account; the consistency of that account with those of other witnesses; the consistency of that account with undisputed facts; the 'credit' of the witness (based upon matters which include, for example, demeanour); any relevant infirmities of the witness; and, importantly, the inherent probability or improbability of the evidence in question.

1. Thus differences in the evidence given by two or more witnesses on the same matter are not necessarily a product of one witness being more creditworthy than the other: it can be a product of one having a better memory than the other, for example.

1. Mr Möller SC submits that Mr Trajkovski's evidence should be accepted on the basis that he answered questions directly, did not seek to engage in argument or to make submissions, and made appropriate concessions, in particular when he was cross-examined by ANZ's counsel about his criminal record. Mr Möller SC submits Mr Trajkovski's criminal record should not affect his credibility.
2. I accept Mr Möller SC's observations about the manner in which Mr Trajkovski gave evidence at trial. However, I need to consider his evidence in light of the fact that he has been running this case up until the trial and he also has an interest in the outcome of this proceeding. Mr Trajkovski's conduct of the proceeding prior to trial, particularly the earlier pleadings prepared by him, demonstrate a preparedness to put forward any position that he perceives would advance the defendant's case.
3. At the end of the day, however, his evidence on issues in contention was limited and not especially controversial.

1. ANZ does not challenge the evidence given by Ms Ha Nguyen and it submits that she is a witness of credit.
2. However, Mr Möller SC submits that while Ms Ha Nguyen made necessary concessions during her evidence, she also tended to be argumentative in some respects when cross-examined by the defendant. Ms Ha Nguyen often posed questions back to the defendant that were almost cross-examinations themselves. At times, she sought to challenge some of Mr Möller SC's questions.
3. I accept Mr Möller SC's submission that at times Ms Ha Nguyen was argumentative. By way of example, when the defendant asked Ms Ha Nguyen about her duty to witness the defendant's signature and to explain the terms of the loan agreement to her, the following exchange took place:

DEFENDANT: So your duty is to have someone to witness my signature, and also your duty is to explain everything to me, but there was no witness and no one explain it to me. You didn't explain the terms and conditions to me?

MS HA NGUYEN: That's not true, and if I did not, why did you sign?

DEFENDANT: But someone has to be witness the document?

MS HA NGUYEN: No.... I am representing the bank.

DEFENDANT: I'm the one who signed first, and you the one act as the witness, but I didn't see you signing?

MS HA NGUYEN: So how come my signature is there?

1. However, I do not consider that Ms Ha Nguyen's intermittent argumentative responses undermine her evidence. I attribute the argumentative tone to the way the defendant asked her questions of Ms Ha Nguyen, which often came across as accusatory. My impression of Ms Ha Nguyen when she was giving her evidence was that she was consistent in her responses and she did make concessions where necessary or appropriate. For example, the following exchange took place when she was initially asked by Mr Möller SC 'how many times did you meet with Ms Nguyen - the defendant?':

MS HA NGUYEN: I remember exactly um sorry not exactly, at least twice, at the application time and the acceptance of the letter offer...

MR MOLLER SC: So twice?

MS HA NGUYEN: At least.

1. Towards the end of the cross-examination by Mr Möller SC, he again posited the same question to Ms Ha Nguyen regarding the number of meetings that took place between her and the defendant and the following exchange took place:

MR MOLLER SC: Just coming back to a question I asked you at the beginning. Have you looked down at all of these documents and taken you through, can you remember how many times you met with Ms Nguyen?---At least twice.

MS HA NGUYEN: At least twice.

MR MOLLER SC: Is it possible that there was a third time?

MS HA NGUYEN: Maybe.

1. ANZ's counsel attempted to undermine the defendant's credit by raising issues with some matters she had stated in her affidavit in the Federal Court proceedings.
2. Firstly, ANZ's counsel submits that in her affidavit filed in the Federal Court proceedings, the defendant had 'deliberately misrepresented her financial position in an effort to make a case that [ANZ} has acted improperly in lending to her'. Mr Möller SC submits that this attack on the defendant's credit goes nowhere because when the calculation of the defendant's income is done on a 'net income' basis and not 'gross income' basis, then the figure arrived at is close to the figure stated in the Federal Court affidavit.
3. Secondly, ANZ says that in her Federal Court affidavit, the defendant never complained about the loan conditions. ANZ's counsel submits that the affidavit 'did not refer to the fact that she was never advised in any shape or form as to the conditions of the loan. It is implausible to suggest that this wouldn't have been an issue at the forefront of her mind, given that at that time [ANZ] had made demands and was threatening to take action in respect of her property'. Mr Möller SC submits that this attack cannot be sustained because at paragraph 21 of the Federal Court affidavit, the defendant deposes 'Ha Nguyen never gave me any guidance nor advice'. Mr Möller SC contends that this shows that the defendant did complain about the loan conditions not having been explained to her.
4. The defendant's Federal Court affidavit does not deal at all with the loan agreement itself, the Letter of Offer, or the conditions of the loan. It deals only with the loan application process, in particular the Loan Application Form. Mr Buchanan was correct when he submitted that no complaint was made in the Federal Court affidavit about the loan conditions themselves. I do not think that the passage in that affidavit referred to by Mr Möller SC is a complaint that the loan conditions were not explained to the defendant.
5. Thirdly, when taken to the section of her Federal Court affidavit about the Loan Application Form, inconsistencies between her evidence given earlier in the trial and in that affidavit were put to the defendant. In the affidavit, the defendant deposed that she went to the ANZ office with her husband, Ms Ha Nguyen asked her a number of questions and then gave her the form to sign. Asked whether her evidence today was that the affidavit was incorrect, the defendant said that her memory might not be good and she could not remember whether she signed it or not. In her affidavit, she had also deposed that all the replies she gave to Ms Ha Nguyen's questions and what Ms Ha Nguyen put in the form were not the same. The defendant said in evidence at trial that this statement in her affidavit was correct. However, I note that much of the detail in the Loan Application Form is consistent with the detail in the January 2016 Form, which contradicts the defendant's evidence in this regard, given her insistence that the January 2016 Form was correct.
6. However, on one issue to do with the Loan Application Form, the defendant has been consistent in her evidence in this proceeding, her Federal Court affidavit, and her pleadings: she insists that Ms Ha Nguyen never asked her whether she was a permanent Australian resident. On the other hand, Ms Ha Nguyen has consistently maintained that she did ask this question and that the defendant answered 'yes'.
7. It appeared to me that when confronted with other evidence, either in the form of documents or her Federal Court affidavit, which tended to contradict or undermine the evidence she was giving at trial, the defendant tended to deflect such matters or attempt to explain them away in a manner that was consistent with the case now being propounded by her. In this way, some of her evidence was self-serving.

F Issue 1: Did the defendant sign the letter of offer and the Mortgage?

1. As already noted, this issue includes consideration of the defendant's forgery allegation.
2. In considering Issue 1, I am not dealing with the question of whether the defendant understood the documents, such as whether she understood what the terms set out in the Letter of Offer were. That will be dealt with in Issue 6.

1. ANZ submits that the Court should be satisfied that the Letter of Offer and Mortgage were signed by the defendant.
2. ANZ submits that the defendant's contention that the Disputed Copy of Letter of Offer and Mortgage are forgeries cannot be maintained for the following reasons:

(a) the defendant has admitted to signing documents at one of ANZ's branches. The defendant has given evidence that she attended a meeting with Ms Ha Nguyen where she was presented with three documents and she signed all three documents, although she claims to have not understood what she was signing;

(b) the defendant's admission to signing documents mean that it is unlikely that ANZ or its agents would decide to forge the defendant signature in those documents as the defendant was willing and available to sign those documents;

(c) Ms Ha Nguyen gave oral evidence recalling the defendant attending one of ANZ's branches to sign the Letters of Offer and the Mortgage. Ms Ha Nguyen's evidence was that at the meeting where the Letters of Offer and Mortgage were signed she had explained to the defendant the terms of the Letter of Offer and that there were two copies of the Letter of Offer to be signed. At the conclusion of the meeting, she gave the defendant a copy of the Letter of Offer that she had signed along with the terms and conditions referred to in the Letter of Offer;

(d) since the loan was taken out, the defendant has made a complaint to AFCA and commenced proceedings in the Federal Court. Despite having two opportunities to raise the serious allegation of forgery, the defendant has chosen to only raise the forgery allegation partway through this proceeding; and

(e) each of the experts' evidence was that the variances in the signatures were such that they could not form a conclusive view as to authorship. In fact, ANZ submits that the experts' evidence is of little probative value given the conclusions reached. However, as they are experts in their fields and had reviewed a number of samples of the defendant's signature, there is no reason not to accept the experts' evidence. The experts' evidence was also not challenged by the defendant. Further, to the extent the experts' evidence is helpful, it can be weighed against the defendant's evidence in relation to her signature on the Disputed Copy of Letter of Offer. The defendant gave evidence that she did not think the signature was hers. But the experts, having reviewed that signature, along with a number of samples of the defendant's signature, formed the view that it could not be determined that the signature on the Disputed Copy of Letter of Offer was not the defendant's signature.

1. ANZ denies that the Disputed Copy of Letter of Offer is a forgery, but submits that in circumstances where the defendant admits that the signature on the Undisputed Copy of Letter of Offer is hers, which letter is in precisely the same terms as the disputed one, the allegation of forgery is irrelevant.
2. In relation to the date discrepancy between the typed date on the Letter of Offer (19 July 2016) and the handwritten dates on the execution page (20 June 2016), ANZ submits that Ms Ha Nguyen gave oral evidence that she had made an error when writing down the date the Letter of Offer was executed and that the true date of execution should be 20 July 2016. ANZ submits that Ms Ha Nguyen's evidence on this issue was clear and there is no reason for the Court not to accept her evidence on this issue.

1. In closing submissions, the defendant relied on the typed date and the handwritten dates on the Letter of Offer as not matching, saying that the handwritten dates on the Letter of Offer and the Mortgage of 20 June 2016 are not correct and that the Court has confirmed that these are not correct. However, she then went on to submit that the date on the lease agreement and the Letter of Offer were before the date on the Loan Application Form, and that this was unreasonable. She sought to cast doubt on the Letter of Offer because it has a date before the Loan Application Form. I note that this is inconsistent with her saying that the dates on the Letter of Offer and Mortgage of 20 June 2016 are not correct, and I have not been able to reconcile her submission on this point. Accordingly, I do not think I should treat her submission that the handwritten dates are not correct as an admission by her of that as a fact.
2. The defendant submits that Ms Ha Nguyen's evidence that she gave the defendant an original signed Letter of Offer to take home is not true, and that she does not know why there are two Letters of Offer and there are two different signatures. She relied on her evidence that the signature on the Disputed Copy of Letter of Offer was not hers.
3. The defendant submits that ANZ does not have an original document, which she says is a very big mistake and that I should consider this.

1. Mr Möller SC submits that the expert evidence may not assist the Court a great deal in determining whether the defendant signed the Disputed Copy of Letter of Offer and the Mortgage, given the conclusions reached by both experts at trial. Mr Möller SC referred to Bugeja v Bugeja,[29] where Slattery J states that the Court, in determining questions of handwriting, should evaluate expert evidence with the remaining evidence and not give the expert evidence a dominant role to the point where it might lead to 'a misapprehension of the weight of the remaining evidence, including circumstantial evidence about the genuineness or otherwise of disputed handwriting.'[30] Mr Möller SC also submits that the authorities warn that expert handwriting evidence should be approached cautiously, where the expert does not know the precise physical conditions under which that signature was made.[31]
2. Mr Möller SC did not make submissions one way or the other as to whether the defendant's signatures were forgeries. Rather, he pointed to particular pieces of evidence which he submitted were relevant to the question. I have considered these below.

1. It is necessary for me to point out for the defendant's benefit that in this and subsequent 'consideration' sections in these reasons, I have taken the orthodox approach of analysing each Issue based not just on the defendant's submission but also on her evidence and the position set out in her amended defence and counterclaim. This is so that all relevant matters are considered, not just those which were referred to in her oral closing submissions, in case the defendant did not mention something in oral closing submissions because she had already said it when giving evidence or was relying on her pleading.
2. In terms of the actual signing of the Letter of Offer and the Mortgage, there is no real contest between the only two witnesses who can give direct evidence about this. Both Ms Ha Nguyen and the defendant agree that three documents were signed at the final meeting which only they attended. Whether that final meeting was the second or third meeting between them is immaterial to the narrow question of whether the defendant signed these particular documents.
3. Ms Ha Nguyen says that she had the defendant sign two copies of the Letter of Offer and one copy of the Mortgage. She says that the documents were complete, that is, the Letters of Offer were each multiple page documents.
4. On the other hand, the defendant admitted signing three pieces of paper but was adamant that she did not know what the pages were and that there were no other pages of the documents shown to her. Thus the defendant accepts that she signed three pages.
5. The question is whether those three pages were the execution pages for the two copies of the Letter of Offer and for the Mortgage, bearing in mind that the defendant admitted she could not say what the documents were.
6. That being the case, the defendant was not really in a position to contradict Ms Ha Nguyen's evidence that the documents signed by her at the final meeting were the two copies of the Letter of Offer and the Mortgage.
7. The state of the defendant's evidence by the conclusion of trial in respect of her purported signature was as follows:

(a) she denied that the signature on the Disputed Copy of Letter of Offer was her signature;

(b) she admitted that the signature on the Undisputed Copy of Letter of Offer was her signature; and

(c) she stated that the signature on the Mortgage looked like her signature.

1. Ms Ha Nguyen's evidence is supported by the facts as they have emerged: in particular:

(a) that there are two distinct signed copies of the Letter of Offer such that one is not a copy of the other. This is apparent from the discussion in paragraph 19 above; and

(b) the defendant's admission that the signature on the Undisputed Copy of Letter of Offer is her signature.

1. Far from undermining ANZ's case, in my view the existence of the Undisputed Copy of Letter of Offer, which the defendant acknowledges she signed, supports ANZ's case. In particular:

(a) having signed one copy of the Letter of Offer, the notion that she did not sign the other copy seems implausible; and

(b) there seems to be no rationale for disputing her signature on the Disputed Copy of Letter of Offer, once the Undisputed Copy of Letter of Offer was located and she admitted signing it.

1. In her amended defence and amended counterclaim, the defendant relied heavily on the opinion expressed in Mr Ganas's report. However, Mr Ganas changed his opinion at trial, after having the opportunity to review Dr Dewhurst's second report and confer with her. Thus the expert evidence at trial was that the evidence was inconclusive such that an expression of authorship could not be made (in Dr Dewhurst's words) or that an opinion could not be formed as to whether the disputed signature was genuine or not genuine (as Mr Ganas expressed it). In my view, both experts were qualified to give the opinions they did and their reports were carefully and professionally prepared. Their oral evidence was very short. Due to the way the oral evidence panned out at trial, in particular to Mr Ganas changing his opinion as a result of him reviewing Dr Dewhurst's second report and the conferral between the experts prior to giving evidence, their conclusions ended up the same and so I do not need to accept one expert's evidence in preference to the other expert's evidence. I accept the opinions expressed by both experts at trial. However, in light of the matters set out at paragraph 159 above regarding the authorities and particularly due to the experts' opinions both being inconclusive as to authorship of the disputed signatures, their evidence is of little assistance to the Court reaching a finding on authorship.
2. I find, on the balance of probabilities, that the defendant signed the Disputed Copy of Letter of Offer and the Mortgage, for the following reasons:

(a) I accept Ms Ha Nguyen's evidence in respect of which three documents the defendant signed at the final meeting. Her evidence that there were two copies of the Letter of Offer was persuasive, in particular because she gave her evidence about the production of the copies of the Letter of Offer and the package of materials she took to the final meeting without being prompted about it and without being present in Court during opening submissions or Mr May's evidence;

(b) the defendant was not really in a position to contradict that evidence, particularly given her insistence that she did not know what the documents were;

(c) that she would sign the Undisputed Copy of Letter of Offer supports the proposition that she also signed the Disputed Copy of Letter of Offer;

(d) there is no plausible explanation for why ANZ would forge the defendant's signature on the Disputed Copy of Letter of Offer, particularly in the circumstances of this case;

(e) when the defendant produced, on the last day of trial, the actual Undisputed Copy of Letter of Offer that she and Mr Trajkovski said he had found in their papers at home, it appeared to me to be an original signed document and not a copy. This is despite the ANZ logo on the front page being in black and white and not partly blue. That the defendant had possession of an original signed document is consistent with Ms Ha Nguyen's version of events that two copies were signed and one given to the defendant. Even if it is not the original signed document but is a copy of it, the fact that it is not a copy of the Disputed Copy of Letter of Offer is also consistent with Ms Ha Nguyen's evidence. Since I have found that the Undisputed Copy of Letter of Offer is the original or concluded that if it is a copy that is not material, there is no prejudice to ANZ in me admitting the MFI Letter into evidence (see paragraph 127 above);

(f) the difference in the evidence of Ms Ha Nguyen and the defendant as to whether she was given documents, including one original signed copy of the Letter of Offer, to take home is not determinative of the question as to whether the defendant signed the Undisputed Copy of Letter of Offer. Whether she took it home with her, or it was mailed to her, she accepted that it was her signature. To the extent that it matters, I think it more likely than not that she was given this letter to take home, including because the evidence she (and Mr Trajkovski) gave about receiving it lacked clarity, whereas Ms Ha Nguyen's evidence was clear. The fact that the defendant did not produce a cover letter or such like, which one would expect if it had been mailed to her, assists in reaching this conclusion, however I would not give that much weight;

(g) the defendant's own evidence was that the signature on the Mortgage looked like her signature; and

(h) the experts' evidence was inconclusive, such that they were not able to express an opinion as to authorship of the signature on the Disputed Copy of Letter of Offer and on the Mortgage. Therefore the experts' evidence neither supports her having signed those two documents or negates her having signed them. Accordingly, my finding as to the defendant having signed the two disputed documents is based on the matters referred to in (a) to (e) above and the experts' evidence is not inconsistent with that finding.

1. I do not consider that the date discrepancy in the Letter of Offer, being the discrepancy between the typed date and the handwritten dates, undermines this finding. Ms Ha Nguyen's explanation for this date discrepancy was convincing and I accept it. I do not consider that the defendant's attempts to undermine her credibility in respects of other matters mean that I should not accept Ms Ha Nguyen's evidence in this regard. No serious attack on her evidence on that question was made, in any event. That explanation for the date discrepancy also accords with common sense. To the extent that the date discrepancy was a factor in the summary judgment decision, my view is that this aspect was well and truly addressed at trial, such that I am satisfied that the date of 20 June 2016 is an error. I find that the Letter of Offer was signed on 20 July 2016.
2. I also accept Ms Ha Nguyen's evidence that the handwritten date of 20 June 2016 on the Mortgage is an error, and that it was meant to be 20 July 2016, for the same reasons. Accordingly, one of the other unresolved issues from the summary judgment decision, being the question of how the Mortgage was entered into before the loan agreement (as represented by the typed date on the Letter of Offer), is no longer an issue. This finding means that the paragraphs of the amended defence and counterclaim which rely on the Mortgage having been signed prior to the Letter of Offer are rejected.[32]
3. The defendant attempted to attack Ms Ha Nguyen's credit or undermine the latter's evidence about the signing of the Mortgage by challenging her about witnessing the defendant's signature, saying that she had not seen Ms Ha Nguyen sign the document as witness. I accept that Ms Ha Nguyen signed the Mortgage as witness, noting that whether or not the defendant's memory on this point is accurate is immaterial: Ms Ha Nguyen signed as witness either at the time or shortly after and it does not detract from her evidence that she saw the defendant sign the Mortgage.
4. I note that in her amended defence and amended counterclaim, the defendant says she signed three papers on 20 June 2016: the execution pages of the Letter of Offer and the Loan Application Form, and the Mortgage. I do not accept this. It is implausible that the Loan Application Form was signed on the same date as the Letter of Offer and the Mortgage. The date discrepancy on the Letter of Offer and the date on the Mortgage have been explained and I accept that these should have been dated 20 July 2016 and that 20 June 2016 was an error. If the defendant's recollection of signing three documents on the one day is correct, then it is far more likely that these were the two copies of the Letter of Offer and the Mortgage, rather than the Letter of Offer, Mortgage, and Loan Application Form.
5. I do not regard it as significant that ANZ does not have the original document ('Letter of Offer') that was signed. Mr May's explanation for this was detailed and plausible and I accept it. No suspicions are aroused by virtue of ANZ not having the original document, despite the defendant's emphasis on this in many of her materials and at trial.
6. For all of the reasons set out above, the defendant's allegation regarding forgery is rejected. Any of the elements of her amended defence or counterclaim based on the forgery allegation are also rejected.[33]

G Issue 2: If the defendant did sign the letter of offer, has ANZ proven the Alleged Loan Agreement?

1. ANZ submits that the evidence of the defendant having entered into the Alleged Loan Agreement, by way of signing the Disputed Letter of Offer and the Mortgage, is self-evident on the face of the documents. Both documents are maintained by ANZ as business records and bear the defendant's signature.
2. ANZ submits that if the signature on the Letter of Offer was not forged, then execution constitutes the defendant's acceptance of the terms therein. In this regard, ANZ refers to the High Court decision of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd,[34] which it says is frequently cited for the proposition that where a person signs a document, they are bound by it. ANZ submits that the Court should therefore accept Ms Ha Nguyen's evidence that the defendant attended an ANZ branch, was presented with the Letter of Offer and the terms and conditions, signed those documents and was given copies to take away with her.
3. ANZ submits that the signed Letter of Offer by the defendant constitutes an agreement between it and the defendant, being the Alleged Loan Agreement, that is governed by the following terms:

(a) ANZ would provide the defendant a loan facility in the sum of $298,000;

(b) Interest payable on the loan is at ANZ's business mortgage index rate (which is reviewed from time to time and varied by ANZ)[35] plus a margin of 1.6%;

(c) The defendant must make monthly payments of interest on the loan for a period of three years and thereafter monthly payments towards the principal debt for a period of 12 years;

(d) The defendant must pay ANZ any costs incurred by it in connection with enforcing its rights [under the business loan] and securities associated therewith;

(e) The defendant must pay the following fees: a loan administration fee, late payment fees, interest on any amount that is not paid when it is due - including interest.

1. ANZ also submits that since issuing this proceeding in December 2021, it has only charged the defendant each of those fees, being the loan administration fees and late payment fees up until that date. That is, ANZ is not claiming any of those fees from December 2021 onwards, despite its entitlement to claim those fees. Further, ANZ submits since December 2021, it has charged interest on the loan (at the rate/s provided for in the Alleged Loan Agreement) but that it has calculated interest on a simple basis, despite being entitled to compound interest.
2. ANZ submits that the terms of the loan provided that a failure by the defendant to make any payment due constituted an event of default which entitled ANZ to give notice that the total amount due and payable under the loan will become immediately due and payable.

1. The defendant accepts that she must repay the Principal, but submits that the interest should be a 'fair' interest rather than the interest sought by ANZ. I will deal with this question as part of Issue 6.
2. The defendant predominantly relies on her contention and evidence that the terms of the loan were not explained to her to say that the Court should reject the Alleged Loan Agreement. It is more convenient to deal with this as part of Issue 6.

1. Mr Möller SC's submission was directed to whether the defendant was bound by the Letter of Offer (and by extension, the Alleged Loan Agreement) if the terms of the loan were not explained to her when she signed the Letter of Offer. As I have already said, I will deal with this in Issue 6 below.

1. The terms of the Alleged Loan Agreement are said to not just constitute the content of the Letter of Offer, but also incorporate the terms set out in other ANZ documents referred to in the Letter of Offer. These are:

(a) ANZ Business Banking Finance Conditions of Use;

(b) ANZ Business Banking Finance Fees and Charges; and

(c) ANZ Business Banking General Service Fees and Charges

1. ANZ relies on the Terms and Conditions Documents and the Letter of Offer as the Alleged Loan Agreement.
2. The defendant's evidence is that Ms Ha Nguyen did not explain the terms of the loan to her and did not give her copies of the Terms and Conditions Documents.
3. Leaving aside the question of whether the terms of the loan were explained to the defendant, which I will deal with at Issue 6 below, on the balance of probabilities I am satisfied that Ms Ha Nguyen gave the defendant copies of the Terms and Conditions Documents to take away with her after signing the Letter of Offer, as well as giving her one of the signed Letters of Offer, as:

(a) I find Ms Ha Nguyen's evidence on this issue more credible than that of the defendant, for similar reasons to those set out at sub-paragraphs 171(a), (b) and (f); and

(b) this accords with usual banking practice and Ms Ha Nguyen's usual practice.

1. Having signed the Letter of Offer, which incorporates the Terms and Conditions Documents, together with having found that the defendant was given copies of the Letter of Offer and the Terms and Conditions Documents, I am satisfied that the terms of the loan between the parties are those pleaded by ANZ, being the terms of the Alleged Loan Agreement.
2. In Toll v Alphapharm, the High Court canvassed a number of authorities before concluding that the 'general rule' is that:

where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document. [36]

1. In this case, I am satisfied that the defendant knew she was signing contractual documents for a loan and mortgage (see paragraphs 252 and 253 below), such that she is bound by them unless there is a vitiating factor. Whether there is such a factor is considered in Issue 6 below.
2. For the sake of completeness, I observe and find that given that the defendant admits signing the Undisputed Copy of Letter of Offer, for the purposes of determining what the terms of the loan agreement are, it does not matter that she disputes signing the Disputed Copy of Letter of Offer. That is because the content of the two versions is exactly the same and it does not matter whether it is the Disputed Copy of Letter of Offer or the Undisputed Copy of Letter of Offer which is relied upon by ANZ in order to determine whether she is bound by the Letter of Offer. In opening submissions, ANZ stated that since the defendant admitted signing the Undisputed Copy of Letter of Offer, it relied on that version. The defendant's repeated references in her materials, particularly her amended defence and counterclaim and Mr Trajkovksi's affidavits, that ANZ relied on what was the Disputed Copy of Letter of Offer do not get her anywhere given the admission about the Undisputed Copy of Letter of Offer and it being in the same terms as the disputed one.
3. To reiterate, the conclusion I have reached regarding Issue 2 is subject to my findings in Issue 6 below. Thus subject to the conclusion I reach in Issue 6 below, the terms of the loan agreement are those alleged by ANZ, such that the Alleged Loan Agreement is the agreement between the parties.

H Issue 3: If the defendant did not sign the letter of offer, what (if any) are the terms of the loan agreement between the parties?

1. Given my findings in respect of Issues 1 and 2, it is not necessary to consider or determine Issue 3.
2. Whether the terms of the Alleged Loan Agreement are binding upon the defendant is more properly considered with Issue 6.

I Issue 4: If the defendant did sign the Mortgage, has ANZ proven the Mortgage?

1. ANZ submits that the defendant agreed to provide security for the loan in the form of a first registered mortgage over the Property. The mortgage was executed by the defendant and incorporated the MCP. The mortgage was registered over the Property on 18 August 2016. Pursuant to ss 91A and 91B of the Transfer of Land Act 1958 (Vic), the memorandum is incorporated into the mortgage.
2. ANZ submits that the MCP provides that if any of the secured money (which is defined in the MCP to mean all money owing to ANZ now or in the future, including interest, fees, costs, charges and expenses) is not paid on time, an event of default will occur. In the event of a default, ANZ may take possession of and sell the Property. The defendant will also be required to pay ANZ's costs of taking enforcement action on an indemnity basis.

1. As best as I can ascertain, aside from her reliance on unconscionability (which I will deal with in Issue 6 below) the defendant contends that the Mortgage is somehow void, voidable or unable to be enforced as it is a forgery and as it pre-dates the loan.
2. In addition, her evidence was that she was never given a copy of the MCP, and I gather that she contends that this impugns the Mortgage in some way, although this was not made explicit.

1. Mr Möller SC did not make any submission regarding Issue 4.

1. I have already considered, and rejected, the contention that the Mortgage is a forgery or that it pre-dates the loan. Hence the defendant's reliance on those matters to avoid the Mortgage is rejected.
2. As noted above, the defendant's evidence was that she was not given a copy of the MCP. To my recollection, Ms Ha Nguyen did not give any evidence about this. Subject to the discussion and findings in Issue 6 below about whether the terms and conditions were explained to her, insofar as enforcement is concerned I do not think that it matters whether the defendant was given a copy of the MCP.
3. The Mortgage is in writing, it is signed by the defendant, as I have already found, and it is registered on the title to the Property. It secures the defendant's obligations under the Alleged Loan Agreement.
4. For all of these reasons, ANZ has proven the Mortgage. That is ordinarily sufficient for the Mortgage to be enforceable, however my conclusion as to the enforceability of the Mortgage must await consideration of Issue 6.

J Issue 5: if ANZ has not proven the Mortgage, should its alternative claim based on an equitable charge succeed?

1. Given my findings in respect of Issues 1 and 4, it is not necessary to consider or determine Issue 5.

K Issue 6: Do other matters raised by the defendant's amended defence and amended counterclaim (insofar as they are able to be pursued) mean that the Alleged Loan Agreement and/or Mortgage are unenforceable? In other words, does the defendant succeed on her unconscionability defence/counterclaim?

1. The remaining matters relied on by the defendant in the amended defence and counterclaim primarily go to the question of unconscionability.
2. As best as I can discern it, there are two aspects to the defendant's unconscionability claim:

(a) that ANZ acted unconscionably by granting her the loan; and/or

(b) that the Alleged Loan Agreement is unenforceable because its terms were not explained to her, and that to the extent she signed the Letter of Offer, she did not know what she was signing.

1. In relation to the first aspect, as set out in sub-paragraph (a) above, the defendant's case is not clearly articulated but it appears to be an allegation that ANZ ought not to have granted her the loan as it was based on information in the Loan Application Form which she maintains was not accurate. As best as I can tell, the defendant argues that issues around serviceability of the loan meant that it was unconscionable of ANZ to have granted it to her.

1. ANZ submits that the single sentence in paragraph 7 of the amended defence is not sufficient for a claim of unconscionable conduct. This is because it has not been properly pleaded and ANZ is unable to properly understand what is being alleged against it and ANZ also does not have proper notice of the allegation the defendant is making in that regard. ANZ also submits that in her 2025 Ruling, the Associate Judge put the defendant on notice of what she could claim against ANZ if she did not seek to amend her pleading to incorporate the matters concerning the unconscionability claim the defendant wanted to make against ANZ.
2. ANZ submits that the defendant's counterclaim constitutes an abuse of process, as it is an attempt to re-litigate issues raised in earlier proceedings which were dismissed in the Federal Court. ANZ's counsel acknowledged that as that proceeding was dismissed without an adjudication on the merits, this is not a situation of res judicata. However, ANZ submits that having attempted in the Federal Court proceeding to impugn the Mortgage and the Alleged Loan Agreement, and that by raising a further claim by way of counterclaim in this proceeding seeking to impugn those matters again, the counterclaim constitutes an abuse of process. ANZ also acknowledged that to the extent the counterclaim constitutes not a claim in itself but a defence to ANZ's claim, then its argument about abuse of process is not applicable.
3. ANZ submits that in her complaint to AFCA in 2019, the defendant did not refer to not being given any of the terms and conditions, but did say the terms had not been explained to her. ANZ submits that the defendant's evidence that nothing was explained to her about the basis on which the loan was to be repaid is implausible when her evidence is also that this was a significant transaction for her. ANZ also submits that in her affidavit in the Federal Court proceeding, she does not refer to not having been advised as to the conditions of the loan. ANZ says that it is implausible to suggest that this would not have been an issue at the forefront of her mind, given that at that time ANZ had made demands and was threatening to take action regarding the Property.
4. ANZ submits that the issue in this case is whether there was or was not a loan agreement and that the issue in dispute is not some claim about impropriety in the lending. Insofar as the Loan Application Form is concerned, the defendant's evidence was that she did not sign the form at the second meeting, but when presented with her earlier affidavit in which she indicated that she did, she conceded that she could not recall. ANZ submits that the key discrepancies between the defendant's evidence and Ms Ha Nguyen's evidence is whether the Loan Application Form was filled in and signed at the first or second meeting, whether Mr Trajkovski was present when that occurred, and whether the defendant signed it. Ms Ha Nguyen's evidence was that she met the defendant on at least two occasions, possibly more. ANZ says that it is open for the Court to conclude that there was a meeting when the Loan Application Form was filled out and signed, and that Mr Trajkovski may or may not have been present at that meeting.
5. ANZ submits that leaving aside the visa issue, as that issue is said to be irrelevant, there does not appear to be any other evidence adduced to support the notion that ANZ lending the amount it did was unconscionable. It says that the evidence was otherwise, the defendant was able to service the loan and as a consequence of obtaining it, was able to purchase a valuable property.
6. In respect of the defendant arguing that she was not bound by the terms of the Letter of Offer, ANZ submits that there was no evidence adduced that would be necessary to make that claim. ANZ refers to Emerton J's (as her Honour then was) decision in Luong v Du[37] where her Honour applied the High Court's decision of Petelin v Cullen,[38] where it was stated that:

To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part. Finally, it is accepted that there is a heavy onus on a defendant who seeks to establish the defence. [39]

1. ANZ submits that here, the defendant's evidence is not that she believed the documents she signed to be radically different to what they actually were, but that she did not know what they were at all. However, this is contradicted by her evidence that when she attended the bank to sign the documents, she did so as the borrower.

1. The defendant alleges that ANZ engaged in unconscionable conduct in its dealings with her. The defendant alleges that her limited English language skills and inability to read English put her at a special disadvantage which ANZ was aware of when it provided her with the loan.
2. The defendant submits that when the loan application was filled in, Ms Ha Nguyen did not check with her on whether the business, being the car repair business that Mr Trajkovski intended to operate at the Property, was still running or not. Further, it was also the basic duty of the bank to check the defendant's ID and everything else to make sure that she was eligible to apply for a loan. The defendant emphasised her evidence that Ms Ha Nguyen, when filling out the loan application with her, did not ask her if she was a permanent resident or not. As I understand the defendant's case, she says that she was not eligible to work in Australia, which she did not know at the time, and that she subsequently had to cease working due to her visa status, which is when she became unable to make loan repayments. She argues that ANZ did not comply with its duty of care when it performed the loan assessment.
3. The defendant also submits that she put real money into the Property and the bank did not give her any money. She contends that the agreement needs to be equal, it cannot be one side puts in something and the other nothing so that the defendant and her husband have to pay everything. She submits that the contract therefore had problems.
4. As stated earlier, the defendant submits that Ms Ha Nguyen did not explain the terms of the loan to her when she was asked to sign the various loan documents. She also submits that Ms Ha Nguyen did not explain the financial risks to her.
5. The defendant also submits she can repay the Principal, that she wants to pay it to make the problem go away. However, on the issue of interest, she submits that the Court should make a decision that she is not liable to pay any interest, or that the Court should set a fair interest. Pressed by me as to what she meant by fair interest, the defendant said it should be a lower rate (without saying what that rate should be) and that it should be payable at the point of the conflict. I questioned what she meant by this, and she said there should be no interest or only from the time this proceeding was commenced. She submits that she and her husband just wanted to get a loan for the business and that due to the financial stress, they have been living in the Property.

1. Mr Möller SC submits that it is common ground that the defendant speaks Vietnamese and little, if any, English (at least at the time the loan was obtained). It has also been accepted by the lay witnesses that the conversations between the defendant and Ms Ha Nguyen were in Vietnamese. Further, Mr Möller SC submits that it can be accepted that whether there were two or three meetings, Mr Trajkovski was not at the meeting when the defendant signed the Letter of Offer, which meant that the defendant was dependent on Ms Ha Nguyen for an explanation of, and to understand the effect of, what she was signing. He submits that Ms Ha Nguyen recognised that it was her job to explain the documents to the defendant, and her evidence was that she had done this. The defendant's evidence was to the contrary. Further, there was no opportunity for the defendant to get legal advice, let alone any independent legal advice.
2. Mr Möller SC submits that the significance of the loan i.e., the amount that the defendant was borrowing, emphasises the need for the defendant to understand what she was committing herself to with the loan.
3. Mr Möller SC also submits that the law on unconscionable conduct will relive a party from a transaction it had entered into. He refers to the High Court's decision of Stubbings v Jams2 Pty Ltd.[40] He also refers to the decision of Commercial Bank of Australia Ltd v Amadio[41], Jenyns v Public Curator (Qld)[42] and Blomley v Ryan[43] where Justice Fullagar held that a special disadvantage can include a lack of assistance or explanation where assistance or explanation is necessary.[44] Mr Möller SC refers to the evidence Ms Ha Nguyen gave where she said that she had concerns that the defendant might be under duress and that she wanted to look out for the defendant as she was also a fellow Vietnamese herself. Ms Ha Nguyen also said that she was trained and taught about responsible lending and wanted to make sure that the defendant was making her own financial decision. Mr Möller SC submits that in this case Ms Ha Nguyen was concerned about duress and the defendant not speaking English. This accentuates the need for an explanation by Ms Ha Nguyen of the terms of the loan.
4. Mr Möller SC submits that there is a finding open to the Court that the Alleged Loan Agreement, being the terms in the Letter of Offer and the Terms and Conditions Documents, are not binding on the defendant, which would leave the defendant in the position where she would need to pay the Principal, and such rate of interest that the Court considers fair.
5. Mr Möller SC acknowledges that the visa issue (being an argument about the legality/propriety of lending to someone who is not a permanent resident) is not a live issue in the case, due to the 2024 Ruling, but says that it is relevant in that the defendant ceased working when it became clear to her that she could not work due to her visa status, which then triggered the default. In other words, there is a factual or causative connection there.
6. Mr Möller SC drew the Court's attention to what appeared to be a missing form. There was some evidence from Ms Ha Nguyen about a pre-approval form, which counsel said was consistent with Mr Trajkovski's evidence that he had filled in two forms, and was also consistent with some text messages between Ms Ha Nguyen and the defendant.
7. An issue regarding the defendant's unconscionability claim is whether it has been adequately pleaded. Paragraph 7 of the defendant's amended defence filed on 1 September 2025 states:

The Defendant was not shown pages 1 to 7 of the Letter of Offer or any part of the Loan Application other than page 8. The Plaintiff's agent did not provide or explain these documents. The Memorandum of Common Provisions (MCP) was not provided at any time before or during the execution of the mortgage security, and no reference copy was annexed or shown to the Defendant.

(emphasis added)

1. Mr Möller SC submits that the sentence which I have bolded above can only be sensibly understood as an allegation based on a notion of unconscionability. In her 2024 Ruling, the Associate Judge allowed the defendant to raise an unconscionability claim but in the 2025 Ruling, the Associate Judge struck out parts of the defendant's counterclaim which raised the issue of unconscionable conduct, giving leave to re-plead.[45]
2. In response to ANZ's submission that the unconscionability claim has not been properly pleaded, Mr Möller SC submits that ANZ's counsel has put the unconscionability claim in issue during his cross-examination of the defendant.

1. In considering Issue 6, the following matters will be addressed:

(a) In respect of unconscionability:

(i) pleading matters;

(ii) whether ANZ acted unconscionably in granting the loan;

(iii) whether the terms of the loan were explained to the defendant;

(b) consideration of any other defence/counterclaim not dealt with in Issues 1 to 5 or in section K.5; and

(c) conclusion regarding whether the defendant is bound by the Alleged Loan Agreement and Mortgage and whether ANZ can enforce them.

1. The defendant's earlier pleading of unconscionability was struck out by Steffensen AsJ in the 2025 Ruling, as it did not state the defendant's alleged special disadvantage or the means by which ANZ is alleged to have taken unfair advantage of her save for reference to forgery and malfeasance, and it did not identify material facts relied upon to establish a cause of action for unconscionable conduct such that ANZ did not have notice of the claim it needed to meet.[46] Her Honour gave leave to the defendant to make an application for leave to file and serve a revised defence and counterclaim. Her Honour then gave extensive guidance to the defendant as to how to properly plead matters.
2. As I noted earlier, unfortunately the defendant did not act upon the guidance given to her by the Associate Judge when she prepared the amended defence and amended counterclaim.
3. The amended defence and amended counterclaim, being the version of the defendant's pleading current as at the trial, does not properly plead unconscionability. It does not state what the defendant's special disadvantage was, what advantage ANZ took of her special disadvantage and how that was unconscionable.
4. I do not accept the submission from Mr Möller SC that unconscionability has been put in issue through ANZ's cross-examination of the defendant about the explanation given to her about the loan. Given that the defendant had pleaded that she was not given an explanation and that her evidence in chief was to the same effect, I do not see how seeking to challenge that evidence through cross-examination amounts to putting in issue a cause of action.
5. However, there are a number of matters pleaded which may go to an unconscionability claim. These are:

(a) the Loan Application Form was not explained to the defendant. It was filled in by Ms Ha Nguyen who took notes from the defendant on a separate occasion and filled in details without full disclosure or the defendant's review;

(b) ANZ required the defendant to execute a lease agreement leasing the Property to her husband, despite not yet owning the Property, in order to fabricate rental income and artificially inflate serviceability, despite knowing the Property could not lawfully be leased to oneself. ANZ later relied on this 'artificial lease' to claim that the purchase of the Property was GST exempt and later misrepresented the nature of the lease to the Financial Ombudsman;

(c) ANZ misrepresented the defendant's income and legal working status to facilitate loan approval, in breach of responsible lending obligations;

(d) the Letter of Offer was not explained to the defendant;

(e) the MCP was not given to the defendant or shown to her; and

(f) the documents were fraudulently completed without the defendant's consent and are therefore not binding on her.

1. Given the defendant is representing herself and that she and Mr Trajkovski, who also has no legal training, have drafted the pleadings themselves, some leeway in respect of pleading matters must be allowed. While the pleading of unconscionability is inadequate, there is sufficient within the pleading and with the argument as put at trial to mean that I should and will consider it. That is not to say that the inadequacy of the pleading and of the case as put at trial are not relevant: the Court can only go so far in seeking to ascertain the defendant's case.
2. It seems to me that the matters described at sub-paragraphs 236(a) to (c) above go to the issue of whether ANZ acted unconscionably in granting the loan, and that those matters described at sub-paragraphs 236(d) to (f) go to the issue of whether the terms of the loan were explained to the defendant. While it is not pleaded as such, I think it is tolerably clear from the materials and the way the case was run at trial that the special disadvantage relied upon by the defendant was her very limited English language skills.
3. I do not place any weight on ANZ's submission that the amended counterclaim is an abuse of process. The Federal Court proceeding was not determined on its merits, and hence no res judicata arises. Further, as ANZ acknowledged, raising unconscionability as a defence would not be an abuse of process, and as I have already noted, the amended defence and amended counterclaim here are very closely linked.

K.5.2 Whether ANZ acted unconscionably in granting the loan

1. The Loan Application Form is relevant to the defendant's unconscionability claim in that she contends that it contains inaccuracies that led to her being granted the loan. Those inaccuracies were attributed to Ms Ha Nguyen rather than to herself, without having really adduced evidence as to what (other than the visa status) information was inaccurate. In this regard, I note that a number of the details in the Loan Application Form are very similar, if not identical (for example, gross and net monthly income, monthly expenses) to those contained in the January 2016 Form. Yet the defendant maintains that the details in the January 2016 Form were correct, because her husband filled it out and explained it to her and she trusts him, and so she signed that form. It does not make sense to contend that the January 2016 Form is correct but that the same information in the Loan Application Form is not.
2. The defendant's position in respect of the Loan Application Form was inconsistent. By way of example, she:

(a) pleaded that Ms Ha Nguyen filled it in later from notes she had taken separately and that she did not have the chance to review it;

(b) initially her evidence was that she had not signed the Loan Application Form, but changed this to saying she could not recall signing it after having been confronted with an earlier inconsistent statement that she had signed it; and

(c) initially her evidence was that she had not been asked any questions about her financial position, but later said that she was asked questions about this, particularly when confronted with her Federal Court affidavit.

1. Where the defendant's evidence differs from that of Ms Ha Nguyen in respect of the completion and signing of the Loan Application Form, I prefer the evidence of the latter. I consider Ms Ha Nguyen's evidence regarding this issue to be more plausible. Her evidence was consistent and not plagued by contradictions as the defendant's was in this regard. On the other hand, the defendant's contradictions and inconsistencies regarding the Loan Application Form left me with the impression that either she does not have a clear recollection of the filling in and signing of that form or that she has had difficulty maintaining the narrative she has built up around it.
2. I find that Ms Ha Nguyen filled out the Loan Application Form with the defendant and had the defendant sign it. True it is that both the defendant and her husband say that this did not occur at the first meeting, contrary to Ms Ha Nguyen's evidence, but the defendant gave evidence that she was asked about her financial position and that the form was filled out or things written down at the second meeting, which is the meeting that Ms Ha Nguyen was not certain had taken place. Whether the form was filled out and signed at the first meeting or at the second meeting (if there were three meetings), I am satisfied that it was so filled out and signed, and that this occurred on a date prior to the defendant signing the Letter of Offer and the Mortgage, as:

(a) I specifically reject the defendant's allegation in the amended defence and counterclaim that she signed three documents, being the Loan Application Form, the Letter of Offer and the Mortgage, on 20 June 2016;

(b) the Loan Application Form bears the date of 8 July 2016 underneath the defendant's signature. Despite confusion around whether there was an earlier pre-approval form and the conflict over whether there were two or three meetings, I am satisfied that the Loan Application Form was filled in and signed on the date that it bears; and

(c) I have already found that the Letter of Offer and the Mortgage were signed on 20 July 2016. The Letter of Offer was generated by ANZ on 19 July 2016, which was after the date of the Loan Application Form, which is consistent with the latter having been filled in and dated on 8 July 2016 and then subsequently assessed by ANZ.

1. As with the other information contained in the Loan Application Form, I am satisfied that Ms Ha Nguyen did ask the defendant whether she was a permanent resident when she was completing the Loan Application Form, for the same reasons I have set out above.
2. It is inconceivable that Ms Ha Nguyen would fill in the Loan Application Form without going through the details with the defendant. Mr Trajkovksi's evidence is of no assistance to the defendant in this regard. He had little understanding of what Ms Ha Nguyen said to the defendant about the loan in the one meeting he attended. If his evidence that the Loan Application Form was not filled in and signed at the meeting he attended is accepted, that does not mean that this was not done at the second of three meetings. While Ms Ha Nguyen was confident in her evidence that this occurred at the first meeting because that meeting remained strong in her memory due to the impressions she formed at that meeting of Mr Trajkovski, it is possible that she conflated the content of the first and second meetings into one meeting. I do not doubt Ms Ha Nguyen's evidence about forming a strong impression of Mr Trajkovski, although I do not consider it necessary to determine whether her impression was accurate.
3. In my view, on the balance of probabilities, the Loan Application Form was filled out by Ms Ha Nguyen with the defendant and signed by the defendant on 8 July 2016.
4. Apart from the visa status issue, the defendant did not plead or articulate at trial the other aspects of the Loan Application Form which she contends were inaccurate. She does not plead or articulate what aspects of the Loan Application Form breach responsible lending practices and obligations (noting that she does not state what these are). It is therefore impossible to discern how it can be said that ANZ acted unconscionably in acting upon the information in the Loan Application Form to approve the loan.
5. I reject the defendant's reliance on the lease of the Property to her husband that she says ANZ insisted she sign for the contention that this artificially inflated her income and artificially stated her ability to service the loan, as:

(a) the income set out in the Loan Application Form appears to be taken from her employment and not from the lease. That this is the case can be seen from the cross-examination on her payslips;

(b) the evidence concerning the lease was scant and confusing;

(c) the pleading that the lease was fabricated was unclear and unsupported by evidence;

(d) the pleading that ANZ required her to sign the 'fabricated lease' 'despite knowing the property could not lawfully be leased to oneself' is nonsensical. The lease was not by the defendant to herself, but to her husband; and

(e) the pleading that ANZ required her to sign the lease despite not yet owning the Property is also nonsensical. A lease can be entered into which comes into effect at a later date.

1. As best as I can ascertain, the defendant's contention is that it was unconscionable for ANZ to grant her the loan as it was based on incorrect information and she could not service the loan. I have just dealt with the incorrect information aspect of her argument. Insofar as serviceability is concerned, I also reject that argument, as:

(a) there is no pleading or other articulation of the lack of ability to service the loan, other than her visa status. Nor was there any evidence about this. It is not up to the Court to assess for itself, without reference to evidence adduced at trial, whether the defendant could service the loan. Further, in this regard, ANZ was not fairly on notice of the case it needed to meet; and

(b) the key aspect of this argument is whether the defendant was able to service the loan at the time she took it out. The evidence is that she was so able, and remained so until some time in 2018 when she had to cease working.

1. For all of these reasons, the defendant's submission as described at paragraph 218 above is rejected.
2. While I have done the best that I can from the pleading, the evidence and the submissions at trial to discern the defendant's claim that it was unconscionable for ANZ to have granted her the loan, for the reasons set out above, that claim must fail.

K.5.3 Whether the terms of the loan were explained to the defendant

1. During cross-examination by ANZ's counsel, the defendant accepted that she knew that she had borrowed a lot of money from ANZ. But she maintained that Ms Ha Nguyen did not tell her about the terms of the loan and that she did not ask Ms Ha Nguyen about the terms of the loan. She accepted that she knew at the time when she borrowed the money that she had to repay it. The defendant says she also knew this later as money was being direct debited from her account.
2. It is clear from her own evidence that the defendant intended to borrow money from ANZ to buy the Property and that she knew she was entering into the loan as a borrower, and that she knew she had to repay it. This is consistent with the terms of the loan having been explained to her.
3. I do not accept the defendant's evidence that the terms of the Alleged Loan Agreement were not explained to her. My reasons for this are set out below:

(a) Given that there are no documents dealing with this issue and that the only persons present when the documents were signed were the defendant and Ms Ha Nguyen, resolving this question comes down to whether I prefer one witness's evidence on the issue to that of the other, taking into account both matters as to credit and the plausibility of each person's account.

(b) Mindful of the principles referred to in paragraphs 132 to 134 above, and in light of my discussion at paragraphs 138 to 149 above, where the defendant's evidence conflicts with that of Ms Ha Nguyen, I prefer the latter's evidence. In my view, Ms Ha Nguyen gave honest and credible evidence. While she was a little argumentative at times, that did not undermine her evidence. Her memory of relevant events appeared accurate and was plausible, despite the passage of time, and I accept that she had a genuine recollection of this transaction, including as I accept her evidence about having a strong memory of having met Mr Trajkovski. Further, Ms Ha Nguyen has no interest in the outcome of this proceeding. On the other hand, the defendant has a clear interest in the outcome of the proceeding and I formed the strong impression that at times she tailored her evidence to better serve her case. There were too many occasions on which her evidence was inconsistent or her explanations unconvincing, particularly when confronted with contradictory evidence. These inconsistencies and contradictions were not due to language issues or to her ability to recall events from some years ago.

(c) Accordingly, I accept Ms Ha Nguyen's evidence that she explained the terms of the loan to the defendant.

(d) I accept Ms Ha Nguyen's evidence that the entire copies of the Letters of Offer were given to the defendant to sign, not just the execution pages. Not only do I accept that evidence in preference to the defendant's, I also think it highly unlikely that a bank officer would have a customer execute only the execution page without seeing the rest of the document. However, I also accept that merely having the entire Letter of Offer in front of her when signing it was insufficient for this defendant. The uncontradicted evidence is that she does not understand written English, and so it can be accepted that she was not in a position to read and understand the content of the Letter of Offer.

(e) Ms Ha Nguyen had a clear understanding of her obligations as a bank officer when dealing with customers, particularly in respect of loans. I think it improbable that she did not explain any of the terms of the loan to the defendant. I also accept that Ms Ha Nguyen satisfied herself that the defendant was freely entering into the transaction.

(f) I also accept Ms Ha Nguyen's evidence that she gave one of the signed Letters of Offer to the defendant to take home with her, along with copies of the Terms and Conditions Documents. I accept that this was her standard practice and there is no evidence to suggest that she did not follow it, other than that of the defendant (which I reject). Ms Ha Nguyen specifically said she have the defendant these documents to take away. Further, Mr Trajkovski locating the Undisputed Copy of Letter of Offer at home some years later is consistent with the defendant having been given it to take home. I acknowledge that being given copies of the Terms and Conditions Documents does not equate to the terms of the loan being explained to the defendant, but it is consistent with that having occurred.

(g) Apart from her allegations of forgery, a key element of the case the defendant sought to make was that the terms of the loan were not explained to her. I formed the strong impression that she fashioned her evidence in this regard to support the narrative she was propounding.

1. There are other difficulties with the defendant's unconscionability claim. In particular, she does not plead or articulate, or give evidence, that if the terms of the Alleged Loan Agreement had been explained to her then she would not have entered into the loan. In circumstances where it has not been established that any of the terms of the Alleged Loan Agreement, either individually or taken as a whole, were somehow unfair or unconscionable, or even that she would not have accepted some or all of the terms, it is completely unclear how it can be said that the failure to explain the terms (if indeed there was such a failure) was unconscionable. The defendant does not plead or give evidence that she would not have entered into the loan, had the terms being explained to her. The defendant does not properly set out, let alone establish, how it is said that ANZ took unfair advantage of her special disadvantage.
2. Accordingly, the defendant's unconscionability claim based on the terms of the loan not being explained to her is rejected.

K.6 Consideration of any other defence/counterclaim not dealt with in Issues 1 to 5 or in section K.5

1. The defendant does not allege that the terms of the Mortgage were not explained to her. The allegation in that regard is confined to the assertion that she was not given or shown a copy the MCP. Nowhere in the pleading or at trial does the defendant articulate how that assertion constitutes a defence or counterclaim. I have already found that the defendant signed the Mortgage. In the absence of any pleading or argument at trial that the Mortgage was not binding upon her due to unconscionability, there is no basis not to find that the defendant is bound by the registered Mortgage and that ANZ is entitled to enforce it by taking possession of the Property. Other allegations in the amended defence and amended counterclaim concerning the enforceability of the Mortgage were rejected at paragraph 173 above. To the extent that the defendant relies on her allegations of forgery or procedurally defective documentation to impugn the Mortgage, such as the very vague pleading at paragraph 27 of the amended defence and amended counterclaim, that must also be rejected in light of my rejection of her forgery and defective documentation allegations.
2. Accordingly, the defendant is bound by the Mortgage and ANZ is able to enforce it.
3. As already noted, the defendant's claims referred to at paragraphs 68(e) and 68(h) above are not able to be made: earlier iterations of these were struck out and leave to replead those allegations was refused. This disposes of the defendant's submission as described at paragraph 219 above.
4. Given my findings, the allegation that ANZ knowingly or recklessly relied on a forged and improperly assembled Letter of Offer to initiate this proceeding must be rejected.

K.7 Conclusion regarding whether the defendant is bound by the Alleged Loan Agreement and Mortgage and whether ANZ can enforce them

1. For all of these reasons, the defendant is bound by the Alleged Loan Agreement and the Mortgage, and ANZ can enforce them.
2. Given that I have found that the terms of the loan were explained to the defendant and that her unconscionability claims have been rejected, there is no basis to accede to the defendant's request that there should be no interest payable or that I should base any interest calculation on an undefined 'fair' interest. There is no evidence that the contractual rate of interest is unfair, or any evidence as to what a fair interest rate would be if the contractual rate was found to be unfair. ANZ has calculated the interest on a simple basis for the period after 1 December 2021, which is more favourable to the defendant than compound interest which ANZ is entitled to charge pursuant to the Alleged Loan Agreement. The interest rate applied by ANZ in Schedule B, being the contractual rate, is below that set pursuant to the Penalty Interest Rates Act 1983 (Vic). Hence the contractual rate calculated at simple interest is more beneficial to the defendant than the penalty interest rate. Nor is there any reason to change the period for which interest is payable. ANZ is contractually entitled to charge interest on overdue amounts, and this is what it has done.

(a) ANZ has proven all elements of its cause of action to enforce the Alleged Loan Agreement and the Mortgage;

(b) None of the defendant's defences or counterclaims have succeeded; and

(c) Orders should be made that the defendant pay ANZ:

(i) the sum of $93,882.14; and

(ii) interest on $391,882.14 calculated at the contractual interest rate contained in the Alleged Loan Agreement to 20 February 2026, in accordance with the method set out in Schedule B. In other words, ANZ should update Schedule B so that it calculates the interest at the contractual rate, on a simple interest basis, to 20 February 2026.

(d) There will also be an order in favour of ANZ for possession of the Property.

1. I will hear the parties on the question of the costs of the proceeding. My preliminary view, subject to hearing from the parties, is that the defendant should pay ANZ's costs of the proceeding on an indemnity basis given the contractual provision to that effect. To the extent that orders have not already been made for the costs of the interlocutory applications, the parties will need to address those costs.
2. The proceeding will be listed on 20 February 2026 at 10.00am for the making of orders, including costs. The updated Schedule B should be provided to my Chambers and to the defendant by 4pm on 18 February 2026.

[1] See Trajkovski v Australia and New Zealand Banking Group Limited [2022] FCA 791.

[2] Australian and New Zealand Banking Group Limited (ACN 005 357 522) v Hau Thi Nguyen (Unreported, Supreme Court of Victoria, 25 June 2024).

[8] Australian and New Zealand Banking Group Limited (ACN 005 357 522) v Hau Thi Nguyen (Unreported, Supreme Court of Victoria, 28 March 2025).

[11] 2024 Ruling, [2], 2025 Ruling, [101].

[13] See, for example, Trkulja v Markovic [2015] VSCA 298; Doughty-Cowell v Kyriazis [2018] VSC 216; Roberts v Harkness [2018] VSC 215; Biddle v Miele Australia Pty Ltd [2025] VSCA 244; Biddle v Miele Australia Pty Ltd [2025] VSC 146; Brazel v Victoria [2024] VSCA 327, [89].

[14] Trkulja v Markovic [2015] VSCA 298, [37], [39], [41].

[15] [2018] VSC 216.

[16] [2025] VSCA 94.

[18] There is a form entitled 'ANZ Business Credit Application Form' that has been filled in by hand, bears the purported signature of the defendant, and is dated '08/07/2016'. I shall refer to this as the Loan Application Form.

[19] I note that no iteration of the statement of claim actually makes this claim.

[20] In respect of the pleading referred to at paragraph 68(e) above, see paragraph 96 of the 2024 Ruling and paragraphs 36 and 42 of the 2025 Ruling. In respect of the pleading referred to at paragraph 68(h) above, see paragraph 42 of the 2025 Ruling.

[21] The defendant subsequently provided to the Court a copy of an email from Mr Trajovksi to Mr Ganas, which Mr Trajovski contended showed that the supplementary Dewhurst report had been provided to Mr Ganas, but this email does no more than show that the first Dewhurst report had been given to Mr Ganas. In any event, nothing turns on it.

[22] I do not consider it necessary to detail her response in this regard, due to its potential to cause embarrassment to Mr Trajkovski. If the purpose of this evidence was to explain why, after the passage of significant time between 2016 and trial, the witness had what she described as a strong recollection of that meeting, then it is unnecessary for me to do anything more than indicate whether I accept that she was able to accurately recall that meeting. I will discuss that aspect later, when setting out my findings.

[23] Some of the figures in the 'assets' section of the form for bank account, the car value and year of car, and furniture/household goods are difficult to decipher. What I have recorded here is my best guess as to what those figures seem to be.

[24] [2023] VSC 524, [286], [288].

[25] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 129 [30] (Gleeson CJ, Gummow and Kirby JJ) citing Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The 'Palitana') (1924) 20 LI L Rep 140, 152 (Aitkin LJ).

[26] [2021] VSC 97 (Euromark).

[28] Euromark, [41], citing Pell v R [2019] VSCA 186, [897].

[29] [2024] NSWSC 927 (Bugeja).

[30] Bugeja, [244]. See also Gawne v Gawne (1979) 2 NSWLR 499, 453; JD Heydon, Cross on Evidence (14th Edition, LexisNexis), [39105].

[31] Bugeja, [245]. See also Sumner v Booth (1974) 2 NSWLR 174.

[32] These are paragraphs 24, 26 and 27 of the amended defence and counterclaim.

[33] These are the defences/claims set out in paragraphs 4, 5, 13 (last sentence), 18, 20, and 21 of the amended defence and counterclaim.

[34] (2004) 219 CLR 165 (Toll v Alphapharm).

[35] At the date of the Letter of Offer that rate was 7.12%pa.

[37] [2013] VSC 723.

[38] (1975) 132 CLR 355.

[39] Ibid 360 (citations omitted) (Barwick CJ., McTiernan, Gibbs, Stephen and Mason JJ).

[40] [2022] HCA 6; (2022) 276 CLR 1, [38]-[40].

[41] [1983] HCA 14; (1983) 151 CLR 447.

[42] [1953] HCA 2; (1953) 90 CLR 113.

[43] [1956] HCA 81; (1956) 99 CLR 362.

[45] See 2025 Ruling, [40]. I note that in this regard, her Honour stated that if the defendant pleaded it properly and gave proper particulars then it could go ahead.