Plaintiff v Defendant

1 The plaintiff (ANZ) sued the defendant (Michael Loftus) claiming possession of his property at South Morang, that includes the home in which he lives. It claims that he had mortgaged that property to it and breached the terms of the mortgage by not making the repayments owing. It also claimed the sum owing under the mortgage.

2 Mr Loftus filed a defence denying that he had signed the mortgage. The document that he initially filed in response to the statement of claim appears to have also contained a denial that his property was mortgaged to the ANZ, although it is difficult to comprehend.

3 On 2 April 2014, an Associate Justice granted the ANZ summary judgment in the following terms:

(1) The plaintiff recover (from) the Defendant possession of all that piece of land being Lot 2, on Plan of Subdivision 607016C and being the whole of the land contained in Certificate of Title Volume 11029 Folio 533 and known as Unit 2, 5 Briar Court, South Morang in the State of Victoria.

(2) The defendant pay the plaintiff the sum of $132,309.51.

(3) The defendant pay the plaintiff's costs of the proceedings (including the costs of this application) on an indemnity basis.

4 Mr Loftus appeals against those orders and seeks to rely upon a subsequent affidavit that he swore on 21 May 2014 and which was not before the Associate Justice. The parties requested me to hear and determine the argument about the reception of the affidavit and the appeal concurrently.

5 ANZ's case was based on a loan contract made on 7 October 2008 and executed by Mr Loftus which advanced moneys to him under a business loan and a business credit card facility. It contended that as part of those loans, his liability was secured by an instrument of mortgage over his property at South Morang.

6 Mr Loftus, in an amended defence, that he prepared, pleaded in respect of the mortgage:

3.1 The defendant says that the document shown in the Titles Office search AF9935786 have been fraudulently produced and do not contain his signature.

7 He filed particulars of that amended defence. They stated that, save that Carlo De Cesaris, an ANZ Small Business Manager, appeared to have signed the mortgage, he did not know who had signed it. As appears below, Mr De Cesaris did sign the mortgage as a witness.

8 The Associate Justice heard the ANZ's summary judgment application on 27 February 2014. No affidavit was filed by or on behalf of Mr Loftus, although a solicitor had filed a notice of appointment to act for him on 31 October 2013.

9 Mr Loftus has filed an affidavit that he swore on 21 May 2014, and on which he seeks to rely in this appeal. In that affidavit, he explains the steps that he says that he took to have an affidavit prepared for the summary judgment hearing. He states that in February 2014, his solicitor contacted him and requested him to attend her office to complete an affidavit. He so attended on 24 February 2014. His solicitor asked him if he had received the "bundle of papers I sent you" and he said that he had not and did not know what documents she was referring to. The solicitor said "I must not have put enough stamps on it."

10 He and the solicitor went through the file and the solicitor said "Oh, these are the documents. These are your copies."

11 The solicitor said that she would prepare an affidavit, that is for the summary judgment application. Mr Loftus said that he could prepare an affidavit at home, but the solicitor said that it needed to be done correctly and that she would email it to him and that he needed to get it signed and sent back. An affidavit was not prepared that day. Mr Loftus swears that he did not receive a draft affidavit from his solicitor and that he "did not do anything further, because [he] thought she had everything under control."

12 The solicitor appeared for him before the Associate Justice on the hearing of the summary judgment application on 27 February 2014.

13 The Associate Justice understandably placed considerable weight on the fact that Mr Loftus had not sworn an affidavit. In her reasons, Her Honour stated:

In the course of the hearing I directly asked Mr Loftus' solicitor why an affidavit had not been filed on behalf of Mr Loftus. The Court was informed that Mr Loftus' solicitor had some concerns about Mr Loftus in that she thought he may have an acquired brain injury and that this presented difficulties in terms of Mr Loftus being able to attend to give instructions and to prepare such an affidavit. This is an extremely serious matter that was put before the Court. Mr Loftus is legally represented and yet no material has been put before the Court. There was no application for an adjournment for more time so that an affidavit could be filed by Mr Loftus.

14 Mr Loftus states in the affidavit that although he was present at the hearing, he was seated behind his solicitor and he could not hear what she said.

15 Mr Loftus has sworn that he has no brain injury and never told his solicitor that he did have. His counsel, who both appeared for him under the Victorian Bar Duty Barrister Scheme, informed me that they had not seen evidence of a brain injury in their contacts with him. Why his solicitor made the statements about a brain injury to the Associate Justice is not readily understandable on the material before me. No application was made for the appointment of a guardian for Mr Loftus. I am conscious that I have not heard from the solicitor, but her statement can hardly have advanced his case. It was likely to have undermined confidence in the reliability of his recollection of the events concerning the signing of the loan agreement and the credibility of his defence that he had not signed the mortgage.

16 Mr Loftus' solicitor did make submissions about the weight that the Associate Justice should place on the ANZ's affidavits and to the fact that Mr Loftus had not had the opportunity to examine the original mortgage.

17 The Associate Justice in reaching her decision stated:

Having considered the evidence and heard submissions, I do not consider Mr Loftus has any real prospect of success. It was open to Mr Loftus to put some material before the Court and he failed to do so. In circumstances where he makes an allegation of fraud, it is incumbent on Mr Loftus to put some evidence to substantiate the allegation or that demonstrates there is at least a question to be tried.

18 On 1 April 2014, Mr Loftus terminated his solicitor's retainer.

The amended grounds of appeal based on the hearing before the Associate Justice and Her Honour's conclusions.

19 I will first consider those grounds of appeal that relate to the hearing before the Associate Justice and Her Honour's conclusions. The parties accepted that Mr Loftus had to establish an error in the Associate Justice's decision. If his affidavit is received as new evidence he may rely on its contents in the appeal.

20 Ground 1 alleges that the Associate Justice erred in finding that Mr Loftus elected not to file an affidavit in opposition to the summary judgment application and could have filed an affidavit and in having regard to Mr Loftus' solicitor's statements that he may have an acquired brain injury and that that presented difficulties in him being able to give instructions to prepare an affidavit.

21 I do not consider that the Associate Justice erred in making those findings. Her Honour was making the point that there was no affidavit by, or on behalf of, Mr Loftus before the Court. There was only a vague statement that the solicitor thought that her client might suffer from a brain injury.

22 Ground 2 of the Amended Notice of Appeal is that Her Honour erred in finding that Mr Loftus did not suffer prejudice by the ANZ not producing the original or duplicate original of the mortgage in circumstances where he denied signing it. This was not a ground that I understood to be put on behalf of Mr Loftus, when the leave to file an Amended Notice of Appeal was being discussed. However, I will state my conclusion concerning it anyway, as I consider that it is not established.

23 Mr Loftus says that he had unsuccessfully sought a copy of the mortgage from the ANZ in 2009. On 25 February 2014, Mr Loftus' solicitor served a Notice to Produce the original mortgage on the ANZ, which was returnable at the hearing of the summary judgment application two days later.

24 The Associate Justice stated that all of the documents sought in the Notice to Produce were exhibited to the affidavits filed in support of the ANZ's application. She did not consider that Mr Loftus had suffered any prejudice by the documents not being produced and that it had not been submitted that inspection of the original mortgage document dated 9 May 2008 would support Mr Loftus' defence of fraud.

25 In my opinion, in circumstances where Mr Loftus had filed no affidavit denying that he signed the mortgage, this ground of appeal has not been established. His solicitor had been acting for four months and could have taken steps in that time to require the original mortgage to be produced well before the summary judgment application if it was required to enable the signature to be examined. To issue a Notice to Produce returnable at the hearing of the summary judgment application was not a satisfactory manner in which to conduct the defence of the proceeding.

26 Ground 3 of the Amended Notice of Appeal alleges that the Associate Justice erred in finding that it was incumbent on Mr Loftus to adduce evidence to substantiate his allegation or demonstrate that there was at least a question to be tried or to point to something that provided an arguable response to the ANZ's claim. It also alleges that Her Honour erred in finding that Mr Loftus' defence did not require a "full hearing on the merits", that he did not have any "real prospects of success" and that it was in the "interests of justice" to grant the ANZ's summary judgment application.

27 Mr Loftus contended that the Amended Defence and the particulars disclosed a triable issue and should be taken to have been filed and served on a "proper basis", having regard to s 18 of the Civil Procedure Act 2010 and the obligations that it imposed on persons to whom the overarching obligations applied in responding to allegations that were made in a proceeding.

28 I do not accept those submissions. Mr Loftus was in essence making an allegation of fraud against the ANZ. Whatever may be the position in respect of other defences,[1] in my opinion, a defence of fraud must usually be supported by an affidavit setting out details of the defence.[2] This is a case in which that was required.

29 The Amended Notice of Appeal also contained grounds which depend on the admission of Mr Loftus' affidavit. Ground 1, which in its first part deals with the matters set out in paragraph 20, states in its second part:

Should the court accede to the Applicant's application to lead new evidence on the appeal, then this court should find that the Applicant (by his affidavit sworn 21 May 2014):

(a) did not elect not to file affidavit material in resistance to the Respondent's application for summary judgment; and

(b) did not have an acquired brain injury.

30 Ground 3, which in its first part deals with the matters to which I have referred in paragraph 26, states in its second part:

Further, should the court accede to the Applicant's application to lead new evidence on the appeal, this court should:

(a) find that the Applicant (by his affidavit sworn 21 May 2014) has disclosed a "triable issue"; and

(b) dismiss the Respondent's application for summary judgment.

31 Mr Loftus in his affidavit dated 21 May 2014 sets out his dealings with his solicitor, which I have already described and his dealings with the ANZ. He denies that he signed the mortgage on which the ANZ sues. He refers to two mortgages, the first of which is dated 28 November 2007 and which is not the mortgage on which the ANZ sues. However, the dealings in respect of that first mortgage may give some context to the later dealings between Mr Loftus and the ANZ in May 2009, so I will set out the gist of what he says. Mr Loftus, after exhibiting that mortgage and the Memorandum of Common Provisions states that:

... The 28 November Mortgage purports to include my signature. I did not sign the 28 November Mortgage on 28 November 2007, or at any other time. The signature on the 27 November Mortgage looks similar to my signature, however I did not place my signature on that document. I received a copy of the 28 November Mortgage (purporting to include my signature) in April 2012, when this document was forwarded by the Financial Ombudsman Service ('FOS') to my sister, Cathy Loftus, in response to a complaint which she lodged on my behalf with the FOS in 2010, after the ANZ Bank had failed to provide me with the original mortgage documents which the ANZ Bank were claiming to hold over my property where I lived (5A Briar Court - Lot 1). This was the first time I ever saw any version of the 28 November Mortgage which purported to include my signature. I have never seen the original version of the 28 November Mortgage document which purports to contain my signature.

32 He refers to dealings with Mr Dominic Papargiris of the Mill Park branch of the ANZ in 2007 when he sought to borrow approximately $62,000.00 to repay money that he owed to a friend and to pay-out a hire purchase loan on a motor cycle. He said that he was offered a supplementary loan rather than a mortgage secured against his home, because he says that Mr Papargiris told him that if the home loan was done as a mortgage, he would not receive any money before Christmas. He was provided with a letter dated 27 November 2007 to take home with him, but he says that he never signed it. That letter concerned a Loan Offer of $62,416.88. The terms and conditions set out in the attachment to that letter provided that the "new or additional security [is] to be provided to the ANZ for this loan" and which was a registered mortgage to be provided by him over 5A Briar Court.

33 Mr Loftus states that he met Mr Papargiris again in February 2008, when he sought to borrow a further amount of approximately $50,000.00 to complete the renovation of his residence and to upgrade his motor vehicle. He recalled Mr Papargiris stating that he would advance the money and that he would change the supplementary loan to a home saver loan. He recalled Mr Papargiris stating that he might have to sign some documents if the Bank wanted security and that he would give him a call "when they come". Five or six weeks later, Mr Papargiris called him and told him that he had a letter addressed to him, which had come to the Branch, which was a special delivery and which he had signed for. Mr Loftus went to the Branch and Mr Papargiris told him that he had opened the envelope, which he gave him and told him to read and keep in a safe spot, stating "Not very often a Bank gives back a mortgage. No need to sign it, you've got plenty of equity." The envelope contained an unsigned mortgage and a memorandum of common provisions.

34 Mr Loftus then describes what he did with those documents, including giving them to his neighbour because it appears that he considered they described the title particulars of her land. Mr Loftus had originally owned a larger block of land which was later subdivided. There was some suggestion in Mr Loftus' material that he considered that any security that the ANZ had obtained was not over his land, but over the other block that formed part of his land before the subdivision. These matters were not developed or relied on in argument.

35 Mr Loftus then refers to meetings in April 2008 with Carlo De Cesaris, who is as I have stated a Small Business Manager with the ANZ, to borrow approximately $90,000.00 to establish a take-away food business at the Westfield Plenty Valley Shopping Centre in Mill Park. Also present at that meeting was Moses Sakr, his business partner, who also sought to borrow $90,000.00. After the first meeting, Mr Loftus instructed his accountant to forward to the ANZ the financial information that they needed to consider the loan applications.

36 Mr Loftus refers to the mortgage on which the ANZ does sue and which is dated 9 May 2009 and which is exhibited to the affidavit of Mr De Cesaris. He states in respect of that mortgage:

...

Moses and I met with Carlo De Cesaris again, in May 2008 this time at the ANZ's South Morang Branch. At this meeting Carlos informed us that our applications for the business finance were successful and the loans would be drawn down and put into our new business account (which we opened on that day, 9 May 2008) within 24 hours.

I did not sign the 9 May Mortgage on 9 May 2008, or at any other time. Again, the signature on the 9 May Mortgage looks similar to my signature, however I did not place my signature on that document. The only document I recall signing on 9 May 2008, was the Acceptance of the Plaintiff's Letter of Offer, which appears as part of Exhibit 'C D- 3' to the Affidavit of Carlo De Cesaris sworn 2 November 2013 ("the Acceptance"). I recall signing the Acceptance at the Mill Park branch of the Plaintiff in the presence of Carlo De Cesaris and Moses Sark and the signature on the Acceptance is my signature. Again, I have never seen the original version of the 9 May Mortgage document, which purports to contain my signature. The first time I ever saw any version of the 9 May Mortgage which purported to include my signature, was in April 2012, when I received a copy of this document from the FSO, via my sister.

Further, at no time did Carlo ever state to me that I was required to sign a mortgage. Further, I was never required by Carlo, or any other person at the Bank to receive independent advice with respect to the signing of any mortgage in favour of the ANZ Bank.

37 Mr Loftus' business did not succeed. He entered into a Personal Insolvency Agreement under Part X of the Bankruptcy Act 1966 (Cth) with his creditors on 29 March 2009 and Mr Des Ryan was appointed to act as Trustee. He says that it was through his dealings with Mr Ryan that he learned that the ANZ thought that it was a secured creditor and held a mortgage over his home. He swears that he told Mr Ryan that he could not see how that could be the case as he had never signed any mortgage over his home to the ANZ Bank. He states that he continued paying amounts to the ANZ in repayment of his business loans until sometime in 2011. He considered that all his ANZ loans should have been included in his Part X Agreement. He says that he continues to make payments on his supplementary loan/home loan.

38 The question is whether I should permit Mr Loftus to rely on his affidavit. Rule 77.06.9(3) gives the Court power to receive further evidence on appeal on questions of fact by affidavit. In Clark v Stingel,[3] the Victorian Court of Appeal stated:

The principles upon which the Court will grant leave to introduce fresh evidence upon an appeal are not in doubt. Leave should be given only if:

• By the exercise of reasonable diligence such evidence could not have been discovered in time to be used in the original trial.
• It is reasonably clear that if the evidence had been available at the trial, and had been adduced, an opposite result would have been produced.
• The evidence proposed to be adduced is reasonably credible.

39 The other authority referred to was the Victorian Court of Appeal judgment in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd,[4] which included the following statement:

All parties referred to the Court of Appeal decision in Apostolidis v Kalenik, which cited with approval the judgment of Chernov JA in Foody v Horewood:

the question of whether to admit fresh evidence is largely one of discretion and degree bearing in mind the public interest in finality of litigation and, at the same time, the requirements of justice of the case in hand. Generally speaking, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty in which the trial judge's estimate has previously been made. Exceptionally, however, it may be admitted, if some basic assumption, common to both sides, has been falsified by a subsequent event. More precisely, as Lord Wilberforce observed in Mulholland v Mitchell, courts will allow fresh evidence where to refuse it would affront common sense, or a sense of justice, always keeping in mind that it should be an exceptional event. (Citations omitted.)

40 Mr Loftus' affidavit includes the following features. It describes his dealings with his solicitor, his solicitor's statements to the Court about his possible brain injury, which he denies exists, and her failure to file an affidavit as he says she had promised him that she would do so. It also describes his dealings with the ANZ and with Mr Des Ryan, his Trustee.

41 The ANZ attacks Mr Loftus' credibility and argues that he does not detail the instructions that he provided to his solicitor about his affidavit. However, Mr Loftus' contention that he had not signed the mortgage was evident in his defence and stated in his amended defence, both of which he prepared. Therefore, the case is not one in which to ask whether the evidence could have been discovered by the exercise of reasonable diligence, of greater relevance is why a defence that was already stated was not sworn to in an affidavit. I have set out Mr Loftus' account of how that occurred. The issues of the effect of the new evidence on the Associate Justice's determination and the credibility of the new evidence overlap. Those issues also overlap with the issue which arises if the further evidence is admitted, that is the effect of the affidavit on the outcome of this appeal.

42 To assess these matters, I must consider the effect of Mr Loftus' affidavit as well as the ANZ's affidavits. I will now refer to the ANZ's evidence, including the affidavits that it has filed following the making of Mr Loftus' affidavit of 21 May 2014. The ANZ filed further affidavits which largely responded to issues that Mr Loftus raised in his affidavit. The ANZ's further affidavits were by Mr Des Ryan of 11 July 2014, Mr Yunous Shair of 16 July 2014 and Ms Jessica Cullin of 17 July 2014.

43 Mr Shair is a Manager in the Commercial Collection Services of the ANZ. He made the principal affidavit of debt dated 6 December 2013 that the ANZ relied on before the Associate Justice. The ANZ also relied on the affidavit of Mr De Cesaris, whom I have referred to previously. The ANZ also filed affidavits of service.

44 The ANZ relies on a number of documents to contend that, even with Mr Loftus' affidavit in evidence, he has no real prospect of successfully defending its claim.

45 It points to the fact that Mr Loftus in his amended defence admitted the loan contract on which the ANZ sued and under which it says $94,346.59 was advanced to him on 7 October 2008.

46 Mr De Cesaris, in his affidavit, describes his dealings with Mr Loftus commencing in April 2008, when with a business partner Moses Sakr, he applied for a business loan to open a take away chicken and seafood business. Mr Loftus and Mr Sakr were each seeking to borrow $90,000.00. Mr Loftus signed a loan application which included offering his home as security. On 6 May 2008, Mr De Cesaris signed a letter of offer to Mr Loftus containing a mortgage of his land, the Bank's Finance Conditions of Use and the memorandum of common provisions of the mortgage. He is not sure if he sent them to Mr Loftus, if he personally provided them to him or if Mr Loftus collected them. Mr De Cesaris then stated:

On 9 May 2008, I met with the Defendant. I believe the meeting would have been at the Plaintiff's South Morang Branch. At the meeting with the Defendant I believe that the Defendant signed the First Loan Contract in my presence.

At page 2 of the First Loan Contract, it lists as security to be taken by the Plaintiff in respect of the facility, a second registered mortgage over the Property.

On 9 May 2008, at the same meeting with the Defendant, as referred to in paragraph 14 above, I believe that the Defendant signed the Mortgage in my presence. After signing the Mortgage, I signed the same as witness. I have no doubt that the Defendant signed the Mortgage in my presence, as if he had not, I would not have signed same as witness to the Defendant's signature. My practice has always been never to sign any documents as a witness unless I have actually witnessed the person first signing the document of which I am to be witness. Under no circumstances do I deviate from that practice.

47 Mr De Cesaris next states that in October 2008 the ANZ, at Mr Loftus' request, provided him with a further $10,000.00 loan. The information sheet that Mr De Cesaris completed in respect of that further loan states that Mr Loftus was offering his standard residential property as security and that the property had been valued in February 2008 by the ANZ at $260,000.00 and had a current outstanding value of $113,466, presumably the value of loans. Mr De Cesaris issued a new Letter of Offer to Mr Loftus of 7 October 2008, which Mr Loftus signed by way of acceptance. It provided for a Business Loan of $96,267.00, which appears to have refinanced the previous loan and a credit card facility of $5,000.00. The letter states under the heading 'Security', that the security for the facility was a second registered standard mortgage over his home. Next to the reference to that mortgage appear the words "(Already held)".

48 The ANZ also relies on Mr Loftus' Statement of Affairs filed under the Part X Agreement. That document in the section headed "Your Liabilities" lists the ANZ as a Secured Creditor, which is owed $203,000 secured by a mortgage given on 7 November 2007 and the asset is a house at 5B Briar Court South Morang with an estimated value of $270,000.00. At 31 March 2009, when he completed his Statement of Affairs, Mr Loftus had the following facilities with the ANZ: the home loan, the business saver loan and a credit card debt, that the ANZ says were secured by the second mortgage and a Business Classic Account.

49 Mr Ryan, the Trustee, made an affidavit in which he stated that Mr Loftus had provided him with the information contained in that Statement of Affairs. Mr Ryan states that:

At no stage whilst I was working with the Defendant did he ever raise with me any issue or dispute in regard to the mortgages the Plaintiff had registered on the title to the Defendant's home at 5B Briar Court, South Morang in the State of Victoria (the Secured Property). Further, it was the Defendant that advised me back in early 2009 that the amount owing to the Plaintiff by himself in regard to the mortgage was approximately $203,000. Had any such issue or dispute been raised, this would have been referred to in the Report.

In addition to the PIA,[5] in late 2009 I assisted the Defendant with his attempts at refinancing his debts with the Plaintiff the subject of its mortgage over the Secured Property.

50 Ms Cullin, who is a solicitor with the ANZ's solicitors, states in her affidavit that, according to the National Personal Insolvency Index, the Official Trustee terminated the Defendant's Personal Insolvency Agreement on 27 June 2012.

51 It is not clear why the Statement of Affairs refers to a mortgage dated 7 November 2007, which secured a debt of $203,000. That is not the mortgage on which the ANZ sues. I have set out previously Mr Loftus' account of his dealings with Mr Ryan. The ANZ submits that that sum of $203,000.00 is the total of the Home Loan and the Business Saver Loan. It therefore submits that the Statement of Affairs is misleading because it overstates the amount of Mr Loftus' secured debt. However, the different date of the mortgage and amount of the debt it is said to secure throws some doubt on the effect of the Statement of Affairs as an admission of a mortgage dated 9 May 2008, at least at this point when the appeal is being heard on affidavits without the deponents being cross-examined. The Statement of Affairs may have been expressed as it was for the purposes of assisting the adoption of the Part X Personal Insolvency Agreement by creditors, but I am unable to make that finding on the basis of affidavits, without having heard oral evidence.

52 The ANZ sought summary judgment under Rule 22.02 and s 63 of the Civil Procedure Act 2010 (Vic).

53 In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[6] Warren CJ and Nettle JA stated:

1. the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;
2. the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

1. it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail test' essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

1. at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not to be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

54 Neave JA expressed concern that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s 63 having little impact in practice.[7]

55 There is a conflict arising from the affidavits about whether Mr Loftus did sign the second mortgage dated 9 May 2008. He has now gone on oath and sworn that he did not.

56 The ANZ's affidavits, and the documents that they exhibit, particularly the letters of offer and their acceptance, throw considerable doubt on whether Mr Loftus' claims will ultimately be accepted.

57 However, on a summary judgment application, the Court cannot determine whether as a matter of forensic conclusion a person has signed a document. Mr De Cesaris swears that he believes and has no doubt that Mr Loftus did sign the mortgage and explains his usual practice in witnessing documents to justify those views. Mr Loftus swears that he did not sign it and was not asked to.

58 The letters of offer, which Mr Loftus accepted by his signature, referred to the second mortgage as security. Mr Loftus does not explain why he signed the Acceptance section of those letters of offer or what he understood them to mean.

59 However, it is usually not the role of the Court in an interlocutory application to determine the effect to be given to conflicting affidavits. Where there are disputed questions of fact, the resolution of the disputes may depend much on the impression created by the oral evidence given by the parties and their witnesses after they have been cross-examined. In the absence of expert evidence, the question of whether a person has signed a document is best determined at a trial after the Court has observed the evidence of the witnesses.

60 I consider that applying the terms of s 63 of the Civil Procedure Act 2010, Mr Loftus has real prospects of defending the ANZ's claim, because after he and other relevant witnesses give evidence, his account of events may be accepted. Much will depend on the impression that his evidence gives.

61 I therefore consider that taking into account Mr Loftus' affidavit evidence, on which he has not been cross-examined and which he has prepared himself, and taking into account all the ANZ's affidavits, applying the words of Clark v Stingel,[8] it is reasonably clear that if Mr Loftus' evidence had been before the Associate Justice, an opposite result would have been produced, that is summary judgment would not have been granted to the ANZ. Faced with the conflict of affidavits, particularly between Mr Loftus and Mr De Cesaris, I consider that it is reasonably clear that the Associate Justice would not have granted summary judgment.

62 Mr Loftus' evidence in his affidavit that he did not sign the mortgage has sufficient credibility to justify it being received. I have taken into account the ANZ's submissions about his credibility. Those submissions may well prove to be decisive after a trial, but I do not consider that a conclusion can be reached that Mr Loftus' account lacks at least reasonable credibility merely on the material before the Court. Findings of credibility are best made at trial. It is difficult to attempt to make them based on conflicting affidavits, particularly when Mr Loftus appears to have prepared his affidavit himself.

63 There is another matter that justifies the receipt of Mr Loftus' further affidavit. The ANZ's judgment was not obtained after a trial and an assessment of witnesses. The situation therefore differs from the position in Clark v Stingel[9] and similar authorities where further evidence was sought to be introduced at an appeal after a trial. The principle of finality of litigation is stronger after the completion of a trial.[10] The ANZ has obtained a judgment, but not after a final hearing.

64 The interests of justice are an important consideration in dealing with the admission of further evidence on appeal. In particular, Mr Loftus' account of his dealings with his solicitor and her failure to file an affidavit or seek an adjournment of the proceeding to enable an affidavit to be filed, persuade me in this appeal that he should be able to rely on his affidavit dated 21 May 2014.

65 In the course of deciding that the further evidence contained in Mr Loftus' affidavit should be received, I have concluded that it is reasonably clear that the summary judgment application would have been dismissed if his affidavit had been before the Associate Justice.

66 For the same reasons as I gave for that conclusion, I consider that the appeal should be allowed. I consider that on the basis of his affidavit, Mr Loftus has real prospects of defending the ANZ's claim within the meaning of s 63 of the Civil Procedure Act 2010. I repeat the essence of what I have previously stated. It may be that his oral evidence will persuade the Trial Judge to accept his account of events. That possibility is difficult to assess from reading conflicting affidavits.

67 I also consider that applying the words of s 64 of the Civil Procedure Act 2010 that this is a proceeding that should go to trial. I consider that this case, involving as it does, a dispute about whether Mr Loftus signed a mortgage should be determined after a trial and that only a full hearing on the merits is appropriate: s64(b).

68 Accordingly, I allow the appeal and set aside the orders of the Associate Justice and dismiss the ANZ's summons. I do so not because of any error shown in the Associate Justice's reasons, but on the basis of the new material filed before me.

69 I will hear the parties about the form of the orders.

70 After delivering the above judgment, I heard submissions about the form of orders that were appropriate. Three matters require mention as a result. The first is that the paragraphs of the ANZ's summons seeking to strike out the defence should remain on foot as that issue was not determined by the Associate Justice. The second is that the Associate Justice gave judgment for ANZ against Mr Loftus in the sum of $132,309.51. That debt was incurred under the loan agreement and was not dependent on the validity of the mortgage. None of the submissions that I received related to that judgment for debt. Ultimately, in submissions after I delivered judgment, counsel did not suggest that I set that part of the judgment aside. I will therefore only allow the appeal against the order for possession and the costs orders that were made.

71 I conclude that Mr Loftus should pay the ANZ's costs of the appeal on a standard basis, but that the costs of the hearing before the Associate Justice should be costs in the proceeding.

[1] Portbury Development Co Pty Ltd v Ottedin Investments Pty Ltd [2012] VSC 490 [26]-[27].

[2] See the cases referred to in Williams, Civil Procedure Victoria [22.04.35].

[3] [2007] VSCA 292 [25].

[4] [2013] VSCA 237 [523].

[6] [2013] VSCA 158 [35].

[8] [2007] VSCA 292 [25].

[9] [2007] VSCA 292.

[10] Cf as to the admission of new evidence on interlocutory appeals Martin v Abbott Australasia Pty Ltd [1981] 2 NSWLR 430, 436-437 and Wickstead v Browne (1992) 30 NSWLR 1, 11 which deal of course with the position under different rules.