Mr Naumovski's credibility
85I have earlier noted that I do not accept Mr Naumovski as a credible witness. My conclusion was reached, amongst other reasons, as a result of the content of the evidence which he gave. It is appropriate to examine those instances which lead to my conclusion.
86In addition to the specific instances, which I will shortly deal with, clearly, what I have discussed immediately above, namely, that contrary to his sworn evidence, I am satisfied that Mr Naumovski does understand and speak English, albeit to a limited extent, is one feature which affects to a significant extent, his overall credibility.
87The first of the specific instances, relates to his evidence about visiting Woods Roberts in December 2004, when he collected the Certificate of Title for his house. The context of this visit was that, on the same day, Mr Naumovski had been to a conference with Mr Harvey when he and his wife had signed, for the first time, a series of documents entering into the first Hamafam loan and the Hely Nominees loan. The obtaining of the Certificate of Title was necessary to enable the loan to proceed and be processed.
88The evidence of Ms McClardy, a solicitor, made it clear that the only document which was signed at the offices of Woods Roberts on that day, was a page of the Security Register maintained by the firm. That page, which is Exhibit DDDD, records in typewriting the four documents held by Woods Roberts for safekeeping in the following terms:
"1. Certificate of Title Folio Identifier ...
2. s149 Certificate from Newcastle City Council dated 5 April 1993.
3. Drainage plans.
4. Search papers."
89On 23 December 2004, Ms McClardy handwrote the following on that page:
"Received above documents 23/12/2004".
Mr Naumovski signed immediately underneath this handwritten note.
90Ms McClardy handed over the described documents in an envelope, which Suzana Nedanovski described as a "long envelope". Having regard to the nature of the documents, and their conventional size, I am able to accept that the probabilities are that documents held for safekeeping by Woods Roberts were in such an envelope.
91Mr Naumovski was cross-examined on this subject. He agreed that he regarded the title deeds as being important documents that he would not let out of his control unless absolutely certain of what was going to happen to them. In contrast, he later said that he did not know where the title deeds were.
92When asked if he went to the solicitors at Mayfield (Woods Roberts) on 23 December 2004, he said, in evidence on 24 February 2011, this:
"I don't remember that. Maybe I gone there to do a will".
93He denied that he ever went there to pick up the Certificate of Title, although he agreed that his signature was on the security register.
94Pausing there, two things emerge from this evidence as at February 2011: first, that Mr Naumovski had no recollection of going to Woods Roberts, and secondly, that he speculated he might have gone there "to do a will".
95Mr Naumovski gave further evidence on the subject in a later affidavit, and in further cross-examination. In his affidavit of 4 August 2011, he said he went to Woods Roberts because his daughter, Suzana, had advised him that his solicitor had called her to say that he had not signed a section of his will, and it was necessary to return to the office to correct that failure.
96In cross-examination, Mr Naumovski gave evidence that he had made a will with solicitors at Mayfield "...maybe were there 25 years ago". He said he had not questioned his daughter as to why, if he had signed the will 25 years before, the solicitors had, without any explanation, telephoned to say that a section of it remained unsigned. She did not, herself, proffer any explanation.
97He said that on his visit to the solicitors, the will was not produced to him, "they didn't show me nothing".
98It is clear beyond argument that the page of the Security Register, which Mr Naumovski signed, was not a will, did not looking anything like a will, and could not be thought, even by someone in Mr Naumovski's position, to be a will. When asked about the resemblance (or the lack of resemblance) between the document he signed (Exhibit DDDD) and a will, he said:
"I don't know - maybe it doesn't - I don't recognise any difference - I don't know what it looks like - I don't know nothing".
99This further exchange also took place about Exhibit DDDD:
"Q. ... it has nothing to do with your Will, that's obvious.
A. Yes, maybe it has got nothing to do with it - I don't know."
100He then denied that his daughter took any documents away from Woods Roberts, saying "I have no idea whether she took documents from there".
101The evidence of Ms McClardy about this episode, which I entirely accept, was given in accordance with her invariable practice and in accordance with her best enquiries. She is a solicitor and gave her evidence without hesitation and in a straightforward manner. The effect of her evidence was that:
(a)Woods Roberts had never received instructions from Mr Naumovski to draft a will for him;
(b)Woods Roberts had no file which referred to, or included, any will for Mr Naumovski;
(c)when Mr Naumovski attended, he was asked to produce photo identification and, only, to sign the Security Register indicating receipt of the documents. As well, he was also asked to produce a written authority from his wife to enable him to obtain the documents;
(d)once identification was established, and he signed the Security Register, the documents were handed over to him.
102Nothing in Ms McClardy's evidence provided any support for any suggestion that a solicitor from Woods Roberts had contacted Mrs Nedanovski, and had suggested that it was necessary for Mr Naumovski to attend at their offices to sign a will or a part of a will, or otherwise correct any earlier inadequate execution of a will.
103Suzana Nedanovski's evidence does corroborate Mr Naumovski's evidence in some respects, but not others. For reasons which will later be expressed, I do not necessarily accept everything which Mrs Nedanovski said in her evidence. Her evidence for the reasons which I set out when later considering her credibility, on this episode is part of her evidence which I could simply not believe. It therefore can, and ought, be put to one side as not providing any corroboration of any real weight to Mr Naumovski's evidence.
104I do not accept Mr Naumovski's evidence on this episode. First, his evidence that Woods Roberts had a will of his was false. They did not ever prepare or have his will.
105Secondly, it is implausible that, even if he was told by Suzana that he needed to correct some defect of his will, he believed that he was going to Woods Roberts for that purpose, because Woods Roberts did not have his will, and after 25 years, on his account, there was no reason given to him to explain the sudden discovery of a defect in signing, which unexplained discovery, was entirely coincidental in timing with the first Hamafam loan and the Hely Nominees loan. His failure to ask any questions about this apparently irrational reason to attend Woods Roberts does not support the accuracy of the account.
106Thirdly, having gone to Woods Roberts, and the only signature being placed by him on the Security Register which was not, and did not, resemble a will, he left with no questioning of either Ms McClardy, or his daughter, about that fact. It would be very surprising if, as Mr Naumovski contends, he attended to sign a will or a part of a will, did not do so and yet left without raising any query, in circumstances where documents were handed over to him and his daughter.
107Fourthly, his explanation fails to account for any need to produce to Ms McClardy, an authority signed apparently by his wife, to authorise him to receive the documents which he did. If he was there to sign a will, which was his will, his wife had no role to play in it, and any authority signed, apparently by her, was entirely irrelevant.
108Fifthly, when he first gave evidence, he did not proffer any recollection of substance of what occurred. He said he did not remember visiting Woods Roberts, and suggested that, really as a matter of speculation, that it might have been to do, that is prepare, a will. Yet, months later in his evidence, he professed a much better recollection of what occurred, which when tested in cross-examination, was responded to by his proffering answers which essentially described, and relied upon, a lack of recollection.
109I conclude that his evidence as to why he went to Woods Roberts, and what happened whilst he was there, was false and was false to his knowledge. He intended to cover up and conceal the fact that he obtained the Certificate of Title for his land from Woods Roberts and gave it to his daughter.
110The second episode which merits close attention, is his evidence, or lack of it, about his retainer of Mr Stanley Price. Mr Naumovski's evidence in chief, which consisted of two affidavits sworn 7 May 2008 and 15 November 2010, made no mention at all of his dealings with Mr Price. These dealings were particularly relevant to his knowledge of the Provident transaction, and the obligations which he was accepting or taking on, as part of that transaction. The lack of any mention of his dealings with Mr Price prior to his cross-examination, could not in my judgment, have been blamed on ignorance or inadvertence. It was plainly deliberate.
111The significance of Mr Price's evidence, and the interaction with Mr Naumovski's evidence, is not to be understated. During the retainer of Mr Price, Mr Naumovski had sworn two affidavits, the contents of which suggested a far greater knowledge of the mortgages and loans and the obligations created by them than did Mr Naumovski's affidavit and evidence in this case. Non-disclosure of this past episode in the affidavits in this case allowed two assertions to be advanced in these proceedings, which were essential to the success of the Naumovskis' claims in this case:
(a)Mr Naumovski and his wife knew nothing of any obligation to lenders on the basis of their being the principal borrowers and mortgagees and that their signatures appear only as witnesses on the documents rather than as parties; and
(b)The first time at which Mr and Mrs Naumovski had notice of any statement of claim or of any court proceedings or that anything was untoward, was the receipt of a letter from the Office of the Sheriff, which was dated 21 April 2008, and which provided that Mr and Mrs Naumovski were obliged to vacate their Wallsend property by 7 May 2008. This was the result of default in the Provident loan, and not any earlier loan.
112I am satisfied from Mr Price's evidence that during his retainer in 2007, at least the following events happened:
(a)Mr Price was consulted by Mr and Mrs Naumovski in the company of at least Suzana Nedanovski, at his office in Double Bay;
(b)Mr Naumovski swore two affidavits without the benefit of an interpreter, one witnessed by Mr Price and the other by a Justice of the Peace;
(c)Mr Naumovski attended the Supreme Court on two occasions. The first in the company of his daughter, Suzana, on 23 May 2007 where he was seen by a Deputy Registrar. The second was in the company of Mr Price, where Mr Price appeared in Court before the Registrar on 7 June 2007; and
(d)Mr and Mrs Naumovski had been personally served with the Statement Claim issued by the solicitors for Lawteal together with a Notice to Occupier on 13 December 2006.
113Each of these events is sufficient of itself, but in combination are such as to convincingly demonstrate that Mr Naumovski was not being truthful in his affidavit and oral evidence about his lack of knowledge of the existence of loans and mortgages over his property, nor of any claims to his home by lenders prior to April 2008. He was not being truthful when he, knowing of his interactions with Mr Price, said in evidence that he did not instruct Mr Price to take proceedings to delay an order for possession of his house. He was not being truthful when he said that he could not recall being in the Supreme Court building in May 2007.
114Another important feature of this episode, which causes me not to accept Mr Naumovski's evidence, is that the contents of his two affidavits, both duly sworn and relied upon to obtain relief in this Court in 2007, are wholly inconsistent with his evidence in these proceedings.
115The first of these affidavits was filed on 23 May 2007. It is unclear precisely when it was sworn in front of Mr Young, a Justice of the Peace, but it must have been no longer than a day or two prior to that time.
116This affidavit contains these statements:
(a)"the property is mortgaged ... and we are in arrears with our payments under the mortgage ...";
(b)"I have applied to Provident Capital to refinance the loan ...";
(c)"I am asking the Court to grant me a stay of the writ for two weeks in order to give ... the time needed to settle the refinance ..."; and
(d)"I would like to point out to the Court that if a stay is not granted, my wife and I, both 67 years of age, will lose our home and our life savings and we will then suffer irreparable harm".
117Whilst it is obvious from the nature of the English used, and the idiom, Mr Naumovski is not, and could not be, the author of these words, I have no reason to think that the effect of these statements and the effect of the contents of this affidavit was not known to him prior to the time when he signed it.
118The second affidavit was witnessed by Mr Price who took some care, according to his evidence which I accept, to explain the contents of the affidavit to Mr Naumovski and to satisfy himself that he understood what was being said. This second affidavit contained in part the following:
"4. I am presently in [arrears] with the payments under the current mortgage and the mortgagee is intent on having me and my wife evicted from our home. We are both 67 years of age and have nowhere else to live.
5. I have applied to Provident Capital for a new loan in the sum of $420,000 which loan has been formally approved, and all the mortgage documents duly signed.
6. The matter was supposed to have settled many weeks ago, however, the arrears were such that there was insufficient equity in the new loan to pay off the old mortgage ...
...
10. I admit that I have not conducted my affairs in a businesslike manner, but I am 67 years old, am a foreigner, my English is very bad, and I am not used to the way in which mortgages work. However, I have now spent time with Price who has carefully explained to me my obligations in terms of the new mortgage, and of the consequences of my failure to adhere to the provisions of such mortgages.
...
13. In the event of the Court refusing to such extension, it will mean my wife and I are losing everything that we have worked for all of our lives."
119Again, it is clear that Mr Naumovski did not write the words in the affidavit. But I have no doubt that he had a sufficient understanding of them when he signed the affidavit. I am satisfied that the affidavit accurately represented his understanding at that time, which demonstrates that his evidence in these proceedings to the contrary is untrue.
120There are a number of other episodes which are pointed to as demonstrating that Mr Naumovski's evidence was untruthful and inaccurate. There is no need to further examine these, because the episodes which I have analysed, together with my observations of Mr Naumovski's demeanour whilst giving evidence, and the manner in which he answered questions, sometime quite evasively and often after significant periods of delay, satisfy me that I cannot accept his evidence unless it is independently corroborated or represents a statement against his own interests.