Southwell v Koutabitsis & Anor

Judgment 1ALLSOP P: The respondents, Catherine Koutabitsis and Angelo Marinos, were each persuaded to invest $150,000 into a land development in Queensland on the assurance of a return of their capital within a matter of months and, upon completion of the development, $300,000 each in cash or an apartment in the development worth even more. They claimed that they had been induced to enter the transaction by the misleading or deceptive conduct of the appellants, Mr Southwell, a mortgage broker and his company Caprice Finance of Australia Pty Limited ("Caprice"). The primary judge (Rolfe DCJ) accepted the evidence of the respondent plaintiffs, disbelieved Mr Southwell comprehensively and entered judgment for the plaintiffs in the full sums claimed by them. 2Mr Southwell and Caprice appeal, broadly speaking, on the following grounds: (a) a failure to assess and weigh the evidence adequately (grounds 1, 2, 4 and 5 of the Amended Notice of Appeal); (b) a failure to give adequate reasons for the decision to accept the evidence of the plaintiffs over that of Mr Southwell (grounds 6 and 7 of the Amended Notice of Appeal); and (c) the finding of Caprice to be liable in the absence of evidence that Mr Southwell's conduct was on its behalf (ground 3 of the Amended Notice of Appeal). 3The third matter referred to above (Caprice's liability if the appeal otherwise fails) was barely argued. No written submissions were put in chief on this point. Barely anything was put in reply. In oral argument on the point, it was all but accepted that if Mr Southwell was guilty of misleading or deceptive conduct, Caprice was fixed with that conduct. This was so because Mr Southwell ran "his" mortgage broking business through Caprice. The events that occurred were concerned with that business, as the plaintiffs borrowed funds in order to invest in the project using the agency of Caprice to arrange that finance. Mr Marinos paid a commission to Caprice; Ms Koutabitsis did not, only because it was treated as a rolling-over of an existing loan. The inference was not only available, but clear, that what Mr Southwell did was done on behalf of Caprice in or in connection with the mortgage broking business. Further, no submission was put to the primary judge that even if Mr Southwell lost, the affair had nothing to do with Caprice. 4The first and second bases of the appeal are related. It was submitted that an examination of the reasons and the evidence revealed an unsatisfactory approach to the fact finding and also that the conclusions drawn by the primary judge as to what happened were unreliable. Further, important aspects of the evidence were said not to have been adequately dealt with or at all. 5Before commencing with the plaintiffs' claims, it should be noted how the case was approached below in broad terms. The contest was whether Mr Southwell made representations to the plaintiffs about the value and safety of a land development investment in Queensland. Central to that were the reliability and truthfulness of the witnesses. Relevant to that was the detail of their evidence. 6Much of the submissions of the appellants focussed upon details of events not expressly dealt with by his Honour in his reasons. It must be borne in mind, however, that, ultimately, his Honour's task was to decide whether Mr Southwell engaged in misleading or deceptive conduct by making representations as to the value and safety of the investments. That depended upon whom to accept: Mr Southwell or the respondents. A case of lack of reliance was run below but not on appeal. No case was run (certainly none on appeal) that even if Mr Southwell said what was asserted it was not misleading or deceptive. 7The claims of the plaintiffs and the background to their losses involved a number of people over a period of time. The parties were as follows: (a) Mr Southwell, who ran a mortgage broking business conducted under Caprice's name (in which company he was the majority or sole shareholder and a director), had been an acquaintance and advisor of Ms Koutabitsis and her family. (b) Mr Johnston and his wife, Ms Taseska, became involved in the relevant venture in Queensland about which the representations to the plaintiffs were made. They controlled a company called First Eclipse Pty Limited ("First Eclipse") which was also involved in the venture. (c) A Mr Lepouris, another investor, was persuaded to become a director and shareholder of First Eclipse. 8It is only necessary to focus on the claims against Mr Southwell. A summary of the claims and essential facts found by the primary judge is as follows: (a) The discussions between Mr Southwell and the plaintiffs as to their participation were said to have occurred from about December 2004 to October 2005. (b) It was said that in about December 2004 Mr Southwell told the respondents that First Eclipse was proposing to purchase a residential development at Redcliffe, in Queensland, known as "Woody Point" for development into home units. It was asserted that at this time Mr Southwell told the plaintiffs that if they each advanced $150,000 to assist in the purchase then: (i) Their loans would be used as a deposit to purchase Woody Point. (ii) Their loans would be repaid within three to four months. (iii) Upon completion of the development at Woody Point, the plaintiffs would each receive $300,000 or an apartment to the value of more than $300,000. (c) It was asserted by the respondents that from December 2004 to October 2005 the essentials of these representations were maintained and further it was said by Mr Southwell: (i) They did not need security for any loans they provided. (ii) If they advanced the loans there was no opportunity for loss. (iii) A number of investors had been pooled together to invest monies in Woody Point and the plaintiffs' loans were the last funds required. (d) In February 2005, Mr Southwell, through Caprice, arranged finance for Mr Marinos for $150,000 from a third party lender, after having met the plaintiffs in January 2005. He later did the same for Ms Koutabitsis. (e) In August 2005, First Eclipse entered into an option agreement with the owner of the land involving payment of $200,000 on 25 August 2005 and $200,000 21 days later. (f) In early October 2005, a meeting was said by the respondents to have taken place at Mr Johnston's home in Drummoyne in Sydney at which Mr Southwell and Ms Taseska were said to have said the following (in the presence of each other): (i) Mr Southwell and Mr Johnston were partners, directors and shareholders of First Eclipse. (ii) Ms Taseska's cousin owned Woody Point. (iii) The plaintiffs' loans would be used as a deposit to purchase Woody Point. (iv) The loans would be repaid to the plaintiffs within three to four months. (v) Upon completion of the development at Woody Point, each of the plaintiffs would receive $300,000 or an apartment to the value of more than $300,000. (g) On 5 and 7 October, after the above meeting, the plaintiffs gave Mr Southwell cheques for $150,000. He deposited the cheques in an account of First Eclipse. (h) Meanwhile, First Eclipse and the owner of the land had agreed that the $400,000 under the option agreement would be paid on 7 October ($100,000), 18 October ($200,000) and 21 October ($100,000). (i) First Eclipse did not make all payments. The option agreement was terminated. (j) First Eclipse did not use the $300,000 provided by the plaintiffs to contribute to Woody Point. The primary judge found at [95] of his reasons that all the funds were used or dissipated, largely if not wholly, by Mr Johnston for his direct or indirect benefit. (k) Ms Koutabitsis received back $15,000 from First Eclipse. Apart from that, neither respondent has been repaid. 9The respondents gave their evidence in chief by affidavit: Ms Koutabitsis in Exhibits B and C; Mr Marinos in Exhibits D and E. Both were cross-examined. Mr Southwell's evidence in chief was given by affidavit. He was cross-examined. 10The primary judge expressed a general preference for the evidence of the plaintiffs over Mr Southwell and his wife Ms Taseska, saying at [26]-[30] of his reasons: "[26] Having had the opportunity to listen to and observe each of the plaintiffs whilst they were giving their evidence, I have come to the conclusion that their evidence is to be preferred over that of Mr Southwell and Ms Taseska. [27] In the case of Mr Marinos, my assessment of his evidence was that it was given carefully, thoughtfully and to the best of his recollection. In that respect, my assessment of Mr Marinos was that he had a good recollection and was a good historian. [28] In the case of Ms Koutabitsis, she was not as good an historian and was very nervous whilst giving her evidence. At times, Ms Koutabitsis was slightly confused, but I put this down mainly to her being nervous and, to a lesser extent, because her recollection was not as good as that of Mr Marinos, particularly when it came to the dates when discussions or important events occurred. Nevertheless, I am satisfied that the account that Ms Koutabitsis gave of the content of the discussions with Mr Southwell, Mr Johnston and Ms Taseska was true and accurate in each case. [29] I do not accept Mr Southwell as a reliable witness. He too was in the witness box for quite a while and so I had a good opportunity to observe him whilst he was giving his evidence. Having done so, the conclusion I have come to is that he was deliberately evasive, he gave a lot of inconsistent answers and was prepared to give whatever evidence he thought was necessary in order to distance himself from the fraud perpetrated by Mr Johnston so he could avoid any liability to the plaintiffs on their misrepresentation case. [30] In the case of Ms Taseska, I also do not accept her as a credible witness. Her evidence was tainted because she sought to distance herself as far as possible from any involvement in the case against her. Therefore, I do not accept her evidence where it is in conflict with that of the plaintiffs." 11The primary judge dealt with the evidence by proceeding largely chronologically through the events, resolving at different places the conflicts in the evidence of the respondents and Mr Southwell. Given the attacks on his Honour's technique, it is necessary to describe in some detail how he approached the evidence. 12The primary judge described the background that the respondents and their families had known each other for many years, that Ms Koutabitsis met Mr Southwell in 2001, that he had arranged some finance for her and her family in 2003 and that from then on Ms Koutabitsis regarded Mr Southwell as her trusted finance broker, whom she introduced to family and friends, including Mr Marinos. 13Ms Koutabitsis and Mr Marinos gave substantially the same evidence about a meeting in December 2004. The judge used Mr Marinos' evidence about this occasion because he said (at [38]) that he considered Mr Marinos' recollection about the discussion was better than that of Ms Koutabitsis. The conversation in the affidavit (set out at [39] of the judge's reasons) was extensive, detailed and precise. Not only did the account cover the details of the representations, but Mr Southwell was also said to have given assurances as to the safety of the investment. 14The judge dealt with the conflict about this meeting at [41] of his reasons as follows: (a) His Honour noted the concessions by Mr Southwell (at T287) that he had met the plaintiffs in November 2004 and that much of what the plaintiffs said was said in November 2004 was said at some stage. (This indicates that it was not crucial to his Honour's acceptance of the respondents that this meeting occurred in December 2004. The assurances were given over a period of time.) (b) His Honour noted that Mr Southwell conceded that he told the plaintiffs that the moneys they advanced would be repaid in 3-4 months (T328, 329 and 350) and that upon completion they would double their investment in cash or by an apartment (T352, 358). (c) His Honour concluded: "... I am therefore satisfied that the conversation took place in December 2004 and that Mr Southwell's evidence that it occurred later was a feeble attempt to help him establish that he did not meet Mr Johnston until much later." 15The timing of this conversation is only relevant as to the respective reliability of the witnesses. The appellants made a number of attacks on the judge's finding. It was emphasised that Mr Southwell said he knew nothing about the Queensland project until mid-2005. It was submitted that there were documents which led to that conclusion being drawn. In this respect letters of April 2004, December 2004, emails of May 2005 and an historical company extract tended to support this. They did no such thing. None of the contents of the documents relied upon was a basis for a conclusion that Mr Southwell had nothing to do with the project until June 2005. Indeed, a feasibility study, which the respondents said they received in May 2005 showed that there were off-the-plan sales of units as early as May 2004. This material did not undermine the primary judge's view that this conversation took place at the end of 2004. 16A general attack was made on the form of evidence of Mr Marinos and Ms Koutabitsis. Their evidence, it was submitted, should be viewed as unreliable. First, their affidavits (prepared with the assistance of solicitors) had some striking similarities. It was put below, and repeated on appeal, that there was collusion in the preparation of their evidence. This was denied. Both accepted that they had spoken together and created a joint document before approaching a debt collection agency. They both insisted, however, that they prepared their affidavits separately. His Honour accepted their evidence. Further, his Honour must be taken to have taken account of the discussion between them. No error was shown in that regard. There were some striking similarities. Nevertheless, three things should be noted. First, the essence of the case against Mr Southwell was that the representations set out earlier were made. In his own evidence, on a number of occasions, Mr Southwell accepted that he said to the plaintiffs that the "deal" was that they would get their money back in 3 to 4 months and double their investment at the conclusion of the development. It was, he said, Mr Johnston who reassured them of the reliability and safety of the "deal". Secondly, although the evidence of the respondents in chief had its similarities in detail, Mr Marinos, in particular, in oral evidence was able to recall the essentials of what he said Mr Southwell said. Thirdly, the primary judge had the advantage of witnessing the cross-examination. 17I am not persuaded that the attack on the form of the plaintiffs' evidence undermines either the conclusion of the primary judge as to the December 2004 meeting or the more general reliance upon and confidence in the plaintiffs' evidence by the primary judge. 18After the December 2004 meeting, the primary judge found that Mr Southwell met the plaintiffs on 12 January 2005. Mr Southwell originally denied this but recanted his denial upon being shown his own diary. It was used by his Honour as a part of the material undermining his confidence in Mr Southwell's evidence. 19At [43] of his reasons the primary judge considered the fact that the plaintiffs executed finance applications in January 2005 supported the proposition that the proposal had been put to them. The proposition that these were applications to raise finance for general non-specific investment depended upon accepting Mr Southwell's evidence. The judge did not. 20The primary judge dealt at [46]-[49] of his reasons with the applications for finance to the lender, RAMS, which contained false statements. The primary judge concluded that these matters were placed in the applications by Mr Southwell. Mr Southwell's denial of that was rejected. There was no objective material to throw doubt upon the judge's conclusion. 21At [49] of his reasons the primary judge found that Mr Southwell was in the habit of getting clients such as Ms Koutabitsis and Mr Marinos to sign documents in blank and then he would fill in the details later on. It was submitted that there was no basis for this conclusion. I disagree. The evidence revealed a system that was consistent with the finding. 22At [51] of his reasons the primary judge rejected a critical part of Mr Southwell's evidence that he did not meet Mr Johnston until June 2005. He said: "I am satisfied that he based this evidence on the first entry in his diary, exhibit N, which mentions Mr Johnston (T324-325). Moreover, in cross-examination Mr Southwell conceded that it could have been up to three months earlier that he had met Mr Johnston (T 299). Most likely it was a lot earlier, and certainly by November/December 2004." 23It was said that the primary judge misread the transcript reference at T299. The extract in cross-examination was as follows: "Q. In your affidavit, you say, 'It was June of 2005,' and you've given evidence orally that it was May or June 2005 but it's around that time? A. It's around that time. Within that six, eight, 12 week period, or something like, yeah." 24Whilst the evidence might not admit the precise construction placed on it by the primary judge, it reflected a lack of precision that was the essence of his Honour's comment. 25At [52] of his reasons the primary judge rejected the evidence of Mr Southwell that Mr Johnston mentioned Woody Point for the first time in May or June 2005. His Honour did this on the basis of the contents of contemporaneous documents. No complaint was made on appeal about this conclusion. 26At [53] of his reasons the primary judge expressed satisfaction that Mr Southwell met Mr Johnston in June based on his own diary records. No complaint was made about this on appeal. 27At [54] of his reasons the primary judge gave further illustration of Mr Southwell trying to distance himself from Mr Johnston by reference to the timing in Mr Lepouris' evidence. No complaint was made about this on appeal. 28At [55]-[56] of his reasons the primary judge discussed the change of the arrangements to an option and Mr Southwell's evidence: "[55] Between 6 July 2005 and 29 July 2005 the deal in relation to Woody Point changed from an outright purchase to an option as demonstrated by the letter from the solicitors for Woody Point to the solicitors for First Eclipse dated 29 July 2005 at A 145. In this regard I am satisfied that Mr Southwell knew all about this by at least Monday 18 July 2005 because he recorded in his diary for that date (exhibit N): '8mil Plus Option Fees ... Get a meeting. 5% Exchange. Subject on Appro of DA. Up 27 August. Purch 6 mths.' [56] Mr Southwell's denial that this diary entry had anything to do with Woody Point was ludicrous and demonstrates how desperate he was to avoid any liability to the plaintiffs (T 314), particularly when all he could do was to suggest that it must have been a reference to one of many other projects going around (T 315)." 29Complaint was made about his Honour's reference to Mr Southwell's denial being "ludicrous". It was submitted that this revealed partiality. I disagree. His Honour chose a word to express a strong finding, which was open to him. 30At [57]-[60] of his reasons, the primary judge discussed the competing evidence of Mr Southwell and Mr Lepouris in which the latter was preferred. No complaint was made about this on appeal. 31In [61]-[62] of his reasons, the primary judge found that Mr Southwell was involved in the Woody Point project. Mr Southwell's evidence that what appeared to be an obviously relevant file note of his "could be from anywhere" reflected badly on his credit. No complaint was made about this on appeal. 32In [63] of his reasons the primary judge dealt with an important discussion of Mr Southwell with the plaintiffs. The paragraph should be understood with [62]: "[62] ... Mr Southwell agreed he had a meeting with Mr Johnston alone on 8 August 2005 at which time Mr Johnston told him the investors were to each put in $100,000 and that they would get their money back 'upon settlement of the land and when the project is finished they will get an extra $200,000' (exhibit 2) (T330-331). [63] Although Mr Southwell said that shortly after this discussion with Mr Johnston he gave a brochure to the plaintiffs without any real explanation (T 327), I do not accept this because he purported to give evidence of an explanation in exhibit 2. In any event, Mr Southwell conceded he told Mr Marinos and Ms Koutabitsis on 15 August 2005 that their money would be repaid to them within three or four months (T 328)." 33The primary judge rejected the evidence that Mr Southwell gave inferentially that he just passed on the information about the "deal". No basis was shown to doubt the judge's conclusion in that regard. 34In [66]-[69] of his reasons the primary judge accepted the evidence of Ms Koutabitsis that after 25 August (being the date of the entry by First Eclipse into the option agreement) Mr Southwell began to pressure the plaintiffs into participation. At [70]-[72] of his reasons the primary judge supported these conclusions by his general preference for the evidence for the plaintiffs and by reference to an email of Mr Marinos sent to Mr Southwell on 1 September 2005 that was said by his Honour to support their version. We were not taken to this email, no submission was put on appeal about it, and no error was asserted by the primary judge in relying on it. 35At [73]-[75] of his reasons, the primary judge considered the circumstances of the delivery of the feasibility study to the plaintiffs including the following at [75]: "... I am satisfied that Mr Southwell went though the feasibility study with the plaintiffs to convince them to put funds into the project and repeated his previous representations which they then relied on." 36Other than the complaints as to what was said to be the uncritical acceptance of the plaintiffs' evidence, no specific complaint was made about these findings. 37At [76]-[86] of his reasons, the primary judge dealt with the meeting on 385 October 2005 organised by Mr Southwell. Present were Mr Southwell, Mr Lepouris, Mr Johnston, Ms Taseska and the plaintiffs. The primary judge was satisfied that Mr Southwell chaired the meeting and made the representations claimed by the plaintiffs. The acceptance of the primary judge of these matters came largely from his acceptance of the evidence of the plaintiffs generally. 39At [87] of his reasons the primary judge accepted Mr Marinos' evidence that in reliance on what was said at the meeting he handed over a cheque for $150,000. 40At [89]-[90] of his reasons the primary judge accepted Ms Koutabitsis' evidence of further representations and assurances from Mr Southwell after the meeting which persuaded her to hand over her cheque for $150,000. 41The reasons of the primary judge on their face are ordered, coherent and detailed. 42I have already dealt with the submissions that the documents of early to mid 2005 made unlikely the judge's conclusion about the occurrence of the December 2004 meeting. 43I have also already dealt with the way his Honour dealt with the form of the plaintiffs' evidence in chief, and the similarity of their affidavits. 44The appellants submitted that numerous aspects of the evidence of both Mr Marinos and Ms Koutabitsis were unsatisfactory and taken together they revealed the unreliability of them as witnesses. 45In none of these specific complaints was there an occasion where a document or an incontrovertible fact denied the accuracy of any finding by the primary judge. 46None of the matters raised by the appellant, individually or collectively, throws any real doubt upon the primary judge's conclusions about the witnesses. 47It is unnecessary to deal with every single aspect of the appellants' submission. A selection from paragraph 31 of the written submissions illustrates the lack of force in the submissions. 31 (a) It was submitted that Mr Marinos denied a number of matters recorded in a business record which was consistent with the appellants' case. The matters denied by Mr Marinos supported the primary judge's conclusions as to Mr Southwell's responsibility for the contents of the loan applications. 31 (b) Mr Marinos claimed Mr Southwell stated there would be 300 units when the document bundle showed only 83. It was submitted that this inconsistency raised the question of whether the representation was in fact made. Mr Marinos' recollection of 300 units being said is not gainsaid by the fact that there were in fact 83 units. It is consistent with some early exaggeration by Mr Southwell. 31 (c) It was submitted that Mr Marinos' recitation of the December meeting in the witness box was vague and he was unable to provide details which he should have been able to recall, given the detail contained in his affidavit covering the same. Mr Marinos' recitation orally was less detailed than in his affidavit, but it traversed the essentials of his complaints. 31 (d) It was submitted that Mr Marinos' evidence about commencing refinancing as being a tough decision was inconsistent with his later statement that it was a simple decision. The asserted distinction between a "tough" decision and a "simple" one is without foundation. Many decisions in life are simple to grasp, but tough to make. 31 (e) Reference was made to 16 aspects of what were said to be Mr Marinos' poor recollection. It is unnecessary to deal with each individually. Together and individually they reflect the usual and almost inevitable vagaries of recollection over, and at different, times. They are all matters well able to be weighed and assessed by the primary judge. Individually and collectively they are unpersuasive of any error in the fundamental conclusion of the primary judge that Mr Marinos' evidence was to be preferred to that of Mr Southwell. 48The appellants identified 18 aspects of Ms Koutabitsis' evidence that were said to throw her reliability in doubt. It is unnecessary to deal with them individually. Taken together or individually they do not raise matters which throw into any doubt the primary judge's conclusions about her evidence. 49It is undoubted that some of the evidence of the plaintiffs was lacking in precision. It is also undoubted that the attempt to recount evidence with precision in affidavits prepared years after the event gave the cross-examiner ample material to show inconsistency. But it is to be recalled that the task of the primary judge was essentially to decide between Mr Southwell's version of events (in essence that the critical representations that he agreed were made were not made by him) and the plaintiffs' (in essence that Mr Southwell, and not anyone else, persuaded them by representation of the worth and security of the project to invest). 50In careful detailed reasons, based partly on demeanour, the judge expressed himself as to why Mr Southwell's evidence was not acceptable. The reasons given by the primary judge for his conclusion that Mr Southwell's evidence was not acceptable did not rest on some uncritical intuitive response to the witnesses before him. As the judge's reasons reveal, his Honour relied from time to time on concessions of Mr Southwell, recounting of evidence by him when confronted with documents, and the probabilities of the sequence of events. 51None of the submissions of the appellants persuades me that the primary judge's conclusions were improbable, a product of his misusing or failing to take advantage of his position or, indeed, doubtful. 52The appellants also submitted that the reasons of the primary judge were defective in that they failed to provide reasons why the primary judge accepted the evidence of the plaintiffs, in particular in the light of what were said to be the deficiencies and inconsistencies in their evidence. 53The principles governing reasons of trial judges were not in dispute and thus need not be referred to in detail. These principles did not require the primary judge to write about every aspect of asserted inconsistency of oral evidence with affidavit. The question is one of degree and substance. In particular, it is necessary to assess whether an argument or matter of substance and importance has not been addressed: see especially Mifsud v Campbell (1991) 21 NSWLR 725 and Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; 60 NSWLR 127. 54No such failure occurred here. The contest was, at root, a straightforward one as to whose version of events was more reliable. The judge concluded in reasons that dealt with the evidence in some detail why he did not accept Mr Southwell. Little attempt was made in submissions to address the conclusions made in respect of Mr Southwell. There appear to be powerful reasons, amply discussed by the primary judge, as to the lack of acceptability of Mr Southwell's evidence, including the following: the failure of the draft loan agreements provided by Mr Southwell to mention the option; the false information placed in the loan applications by Mr Southwell; his denial of knowledge of the option agreement which was contrary to his own diary entry; and the change of evidence about the meeting of January 2005 after he saw his own diary. 55Sometimes credit of witnesses is a comparative exercise. Sometimes it is not. Here, aided by his observations of the witnesses, the primary judge was able to draw the conclusions he did about Mr Southwell's evidence for the reasons he gave. No error has been shown in that approach. 56The appeals should be dismissed with costs. 57HODGSON JA: I agree with Allsop P. 58CAMPBELL JA: I agree with Allsop P.