Well Nigh Funding No 1 Pty Ltd v Tang

The Issues

1. The first question to be decided is whether the defendant in fact signed the written loan agreement.
2. If the defendant did not sign the written agreement, as is her case, the plaintiff contends it has a number of other answers to the defendant's defence, any one of which entitles it to succeed. The issues necessary for me to determine the matter can be summarised as follows. 1. Is there an estoppel arising from the determination of earlier proceedings in the Supreme Court of New South Wales between the parties concerning a caveat over the Parramatta property? 2. Whether, in the event the defendant did not actually sign the Written Agreement, did she by her conduct adopt it? 3. In all the circumstances, are the parties bound by a conventional estoppel to the effect that neither is entitled to assert that the written agreement is not binding? 4. Is the plaintiff required to hold an Australian credit licence and if not, what is the consequence of it not holding such a licence?
3. Dealing with each issue in turn.

Did the defendant sign the loan agreement?

1. The plaintiff has tendered without objection a form of the Written Agreement which purports to be signed by the defendant.
2. The plaintiff takes the position that because it has tendered the apparently signed document and the defendant alleges that her purported signature is a forgery, the defendant bears the onus of proving that her apparent signature was forged and the plaintiff does not bear any onus of proving that the signature was not forged. It follows, so the plaintiff contends, that if the defendant fails to prove the signature is forged, then I must find that it is her signature.
3. The plaintiff relies on cases such as Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 at 25 and Re Application of Sutherland & Arnautovic [2014] NSWSC 821 and the many cases referred to therein.
4. The plaintiff also relies on the so-called "Briginshaw standard" and the similar if not identical proposition found in s 140(2) of the Evidence Act 1995 (NSW).
5. All of that may be accepted. If the defendant alleges forgery, then it is for the defendant to prove forgery. If the resolution of this case depended upon a finding of forgery, then the party alleging the forgery will fail if the forgery is not proved.
6. However, that does not in some way reverse the fundamental onus of proof on the plaintiff. It in no way relieves the plaintiff of its onus of proving that the signature on the document is in fact the signature of the defendant, or of some person with authority to sign on behalf of the defendant. The plaintiff relies on the signed document. The plaintiff has the onus of proving on the balance of probabilities that the document was signed by the defendant or by someone with her authority so as to bind her contractually to the terms of that document.
7. The plaintiff has not sought to discharge that onus other than by tendering the document and submitting that the defendant has not proved the signature to be a forgery.
8. The only conclusion I can come to is that the plaintiff has failed to prove that the loan agreement was in fact signed by the defendant in a way that makes it contractually binding on her.
9. That does not mean that I am satisfied that the purported signature of the defendant on the document is a forgery. I am not satisfied of that at all. The conclusion I have reached as to the question of the signing of the document is that I am not satisfied that either party has made out the positive case they have asserted. That means that the defendant has failed to prove that the purported signature on the document is a forgery whilst at the same time, the plaintiff has failed to satisfy me on the balance of probabilities that the purported signature on the document is the signature of the defendant.
10. Accordingly, I proceed upon the basis that there is no signature on the document that has any legal consequence for the defendant.

The alleged estoppel arising from the earlier Supreme Court proceedings

1. In what might be thought as an unusual forensic move, the defendant in an attempt to stop the plaintiff exercising its powers under its registered mortgage, lodged a caveat on the title of her own property.
2. The plaintiff then served a "lapsing notice" pursuant to s 74J of the Real Property Act 1900. The defendant then brought proceedings in the Supreme Court to extend the operation of the caveat, thus invoking the jurisdiction of that Court found in s 74J(1), to extend the operation of the caveat.
3. The defendant filed and served affidavit evidence in the Supreme Court which made it clear that her fundamental position was that she owed no money to the plaintiff, because she had not signed the written loan agreement on the mortgage, i.e. the same issue which she seeks to ventilate in this case. Her case seems to have been that in those circumstances the mortgage was not enforceable.
4. The order the defendant sought in the Summons, however was only that the caveat be extended.
5. Ultimately, by consent, on 2 September 2019, the Supreme Court proceedings were dismissed with no order as to costs.
6. The plaintiff says that the dismissal by consent of those proceedings gives rise to an "issue estoppel". The issue being that the defendant signed the Written Agreement or was in some other way bound by it. This is because the plaintiff contends that because proceedings to extend the operation of a caveat must ultimately seek final relief which if granted would result in vindication of the interest claimed in the caveat, and whilst an interim order may be made to extend the operation of a caveat, for proceedings to extend a caveat to be properly constituted, they must ultimately contain a claim that when determined will resolve the underlying controversy between the parties on a final basis.
7. The plaintiff's submission is that in the caveat proceedings the relevant vindication of the defendant's interest that she sought (as was clear from her affidavit filed in the proceedings) was a finding that she did not sign and therefore was not bound by the mortgage and/or the agreement.
8. The plaintiff relies on what Barrett J said in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34, what the Court of Appeal said in Ekes v Commonwealth Bank of Australia [2014] NSWCA 336 and what Davies J said in New South Wales Trustee and Guardian v Philpott [2017] NSWSC 472 at [37] - [38].
9. The plaintiff submits that the end result of the caveat proceedings being dismissed must be seen to be a final order, which depended on a finding that the relevant loan agreement was signed by the defendant, in which event an estoppel must follow. That estoppel would prevent that same issue being relitigated by the same parties in subsequent proceedings and would prevent the defendant from raising the same issue in this case.
10. That is not in my opinion the correct analysis of what was decided in the Supreme Court proceedings.
11. I have always understood that caveats are a "statutory injunction" and that on applications to extend or remove caveats, there are two matters for the Court to be satisfied of. The first is whether there is a serious issue to be tried as to whether the person seeking to uphold a caveat has a "caveatable interest"; this is done by analysing the final relief sought, and the second is a consideration of the "balance of convenience" so that a court will only permit a caveat to remain if to do so is "just and convenient".
12. See for example Vella v Aliperti (1995) NSW Conv R - 55-750 at 55,772, National Companies and Securities Commissioner re Register of Titles (1990) 2 ACSR 493 at 495; Butt "Removing Caveats" (1994) 68 ALJ 524.
13. It is also long been the law that for a judicial decision to operate as a res judicata in any sense the decision must be "final". This was said as long ago as 1926 in Eastwood and Holt v Studer (1926) 31 Com Cas. 251 at 256 - 257 when it was held: "Where a decision of a competent tribunal is relied on as creating estoppel and preventing a subsequent review of the matter it is necessary that the matter should have been raised and controverted before the earlier tribunal and shall have been clearly and finally decided by it"
14. The concept of "final" in the context of judgments or orders of courts is of course vexed. The notion has different meanings for different purposes. However, to my mind it is clear (or at least the contrary is most certainly not clear) that a decision by a court to extend or not to extend a caveat will ordinarily not be final, unless within those proceedings there was final relief sought which, in this case there was not. The only order sought in the caveat proceedings was an extension of the caveat invoking the jurisdiction of s 74J of the Real Property Act.
15. The plaintiff contends that if one looks at the affidavit evidence in support of the application to extend the caveat, it becomes clear that what the defendant (plaintiff in the Supreme Court proceedings) was actually seeking to have determined by those proceedings was the underlying question of the enforceability of the mortgage which must have involved her seeking a finding as to whether or not the loan agreement was signed by the defendant or was in some other way binding on her.
16. If one hypothesises how the matter might have been dealt with if it had come on for final hearing and what the issues might have been if they were defined by pleadings or in some other method, I can see the strength in the plaintiff's argument. However, on the other hand, I can also see a hypothetical scenario where a Supreme Court judge on the hearing of the summons dismisses the case for no other reason that no final relief was sought in support of the extension of the caveat. If that was how the matter was dealt with, and on the face of the summons, it is certainly a reasonable scenario, then the only matter that would have been determined would have been the interlocutory question of whether the caveat should be extended or not. On the face of the Summons itself that was in fact what occurred. The application to extend the caveat was dismissed.
17. Such a determination could not create any estoppel because it does not finally determine any rights as between the parties.
18. For those reasons, I am not persuaded that the decision of the Supreme Court relied upon by the plaintiff stands in the way of the defendant seeking in these proceedings to raise and have determined the question of whether the Written Agreement is binding on her or not.

Adoption / estoppel by convention

1. The defendant accepts that she borrowed money from the plaintiff although she says she didn't know it was the plaintiff who was lending her the money at the time. The defendant needed money to assist her with the purchase of a unit at Parramatta which she had agreed to buy on an "off the plan" basis in January 2014 at which time she paid a deposit of $5,000.
2. The defendant retained a firm of solicitors to act for her on the purchase of the property and to make arrangements for settlement . Her solicitor (or as she described him "her conveyancer"), as would be expected was aware of the loan amount and was aware that a mortgage was taken on settlement - indeed he confirmed this to the defendant in writing on 21 April 2017, shortly after settlement. This does not really matter because the defendant accepts that she knew that she was borrowing money to assist with the purchase and that she knew the lender was taking a mortgage. She also says that she understood that the lender would be charging her interest but that she expected the interest to be around 5%. This, it seems, was based on something her mortgage broker told her but is most certainly not consistent with documents she saw at the time.
3. She also says her mortgage broker apparently told her that she was borrowing money from the Adelaide Bank. Again, she knew this was not correct from at least very shortly after settlement.
4. The purchase of the property completed on 15 March 2017. Prior to that her solicitor (conveyancer) in the usual way was in contact with the plaintiff's solicitors in relation to the settlement of the sale and the advance of the loan monies in exchange for a registered mortgage. The defendant's solicitor informed the plaintiff's solicitors of the settlement place and time and the amounts to be paid by the plaintiff to the vendor on settlement. The plaintiff was directed as to how those cheques were to be drawn.
5. In all those circumstances, it does not seem unreasonable to infer that the defendant's solicitor (and therefore for all intents and purposes the defendant) must have been aware of the funding arrangements at least to the extent of the identity of the lender and the amount advanced by the lender.
6. The defendant met with her solicitor in his office on 15 March 2017, prior to settlement on that day. Settlement occurred later in the day and the defendant was informed that settlement had occurred that evening. I think it reasonable to infer that during that day he explained to her the basics of the terms in the Written Agreement.
7. There is no dispute that the plaintiff advanced money by way of loan to the defendant on 15 March 2017 although there is a dispute as to the amount advanced. The initial statement of account for the loan proves an advance of $472,500, being $457,556 described as "the loan advance plus other amounts including an establishment fee" of $14,175. Those amounts are again set out in what is described as a "loan disbursement advice" issued by the plaintiff to the defendant's solicitor at around that time. The amounts are consistent with charges the plaintiff was entitled to receive pursuant to the Written Agreement. The defendant alleges that only $456,661.83 was advanced because that is the amount that was credited to her account, if one ignores the other costs retained by the plaintiff at the time of the advance.
8. As I have said, there is a "signed" Written Agreement dated 6 March 2017 and a "signed" mortgage which was registered on the title to the Parramatta property. It is those signatures that the defendant denies and which I have made findings to the effect that the plaintiff has not proved the defendant's signatures to be on at least the Written Agreement.
9. The defendant alleges that she first noticed payments being made from her account on 30 April 2017. On 24 April 2017 the defendant received an email from her mortgage broker which attached a document setting out details of a loan. That document identified the plaintiff as the lender and various other terms, and identified an interest rate of 7.99% this is lower than the rate in the Written Agreement but nonetheless is more than the defendant says she understood. It also identified the establishment fee and other costs.
10. The defendant says that upon reading that document she determined that the interest rate being charged was too high for her to afford, even taking into account the rental she anticipated receiving from the property. She went and saw the finance broker to try and arrange refinance, which never occurred. It would seem that no real effort was ever made by the defendant to refinance the loan.
11. On or about 23 October 2017 a representative of the plaintiff provided the defendant with "all loan documents including the signed loan agreement mortgage and application forms". This included the Written Agreement. The defendant read and understood those documents at the time.
12. The defendant alleges that once she read those documents, she became aware of their terms. She says that she then informed the plaintiff that "she would sell the property to return the money" and she obtained a discharge authority form from the plaintiff to that end. However, the defendant never took any steps to sell the property, indeed she did everything she could to prevent the sale of the property. The plaintiff relies on that conduct as proof that the defendant accepted the terms of the Written Agreement.
13. On 6 November 2017, the defendant lodged a complaint with the Credit and Investments Ombudsman which, by virtue of the operation of some form of license, prevented the plaintiff from taking any enforcement action while the complaint was on foot. That complaint was transferred to the Australian Financial Complaints Authority ("AFCA") in August 2018.
14. The defendant then lodged a caveat on the title of the Parramatta property in June 2018, which stated as the basis for her interest that "she did not sign the mortgage".
15. The obvious intent of the caveat which unusually was lodged by the registered proprietor on the title of her own property, was to prevent the plaintiff from exercising any powers under the registered mortgage.
16. A determination was issued by the AFCA in August 2018. The defendant did not accept the determination, with the effect that it was not binding on either the plaintiff or the defendant.
17. The AFCA determined that in all the circumstances the claim should be dismissed on the basis that it felt the defendant was bound by the Written Agreement but that a fair and reasonable interest rate to be charged on the loan was 7.99%.
18. On 23 April 2019, the plaintiff made a formal claim for repayment of outstanding interest and issued a default notice to the defendant, and on 14 August 2019 caused a lapsing notice in relation to the caveat to be issued to the defendant which, as I have said, was dealt with by consent after the plaintiff commenced proceedings to extend the operation of the caveat. After taking possession of the property, the plaintiff exercised its power of sale, sold the property on 31 October 2019 with a net amount of $594,695.41 being credited to the defendant's account the following day.
19. Based on that chronology of events, the plaintiff makes the following submissions (paras [35] to [46] of its written submissions) (I have omitted some of the citations and edited some of the extracts): "35. If Ms Tang did not accept the terms of the Agreement by signing it, she accepted the terms by her conduct. Principles 36. The Court of Appeal considered the principles of acceptance by conduct in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (emphasis added). Under the common law theory of contract, the silent acceptance of an offer is generally insufficient to create any contract: Brogden v Metropolitan Railway Co (1877) 2 App Cas 666 at 692 and Robophone Facilities Ltd v Blank [1966] 1 WLR 1428 at 1432; [1966] 3 All ER 128 at 131-132. The objective theory of contract requires an external manifestation of assent to an offer. Convenience, and especially commercial convenience, has given rise to the rule that the acceptance of the offer should be communicated to the offeror. After a reasonable period has elapsed, silence is seen as a rejection and not a acceptance of the offer. Nevertheless, communication of acceptance is not always necessary. The offeror will be bound if he dispenses with the need to communicate the acceptance of his offer: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at 269 … Nevertheless, the silence of an offeree in conjunction with the other circumstances of the case may indicate that he has accepted the offer: Rust v Abbey Life Assurance Co Ltd [1979] 2 Lloyd's Rep 334 at 340 … But more often than not the offeree will be bound because, knowing of the terms of the offer and the offeror's intention to enter into a contract, he has exercised a choice and taken the benefit of the offer. In Laurel Race Course Inc v Regal Construction Co Inc 333 A 2d 319 (1975) a contractor proposed that it would do additional work upon the basis that, if the work was the result of its defective workmanship under the original contract, there would be no charge. Otherwise the work would be charged on a "cost-plus" basis. The building owner made no reply to this offer. The contractor commenced work on the job to the knowledge of the building owner who was held bound by the terms of the offer. Speaking for the Court of Appeals for Maryland, Judge Levine said (at 329): "… Where the offeree with reasonable opportunity to reject offered services takes the benefit of them under circumstances which would indicate to a reasonable person that they were offered with the expectation of compensation, he assents to the terms proposed and thus accepts the offer." This formulation states acceptance in terms of a rule of law. However, the question is one of fact. A more accurate statement is that where an offeree with a reasonable opportunity to reject the offer of goods or services takes the benefit of them under circumstances which indicate that they were to be paid for in accordance with the offer, it is open to the tribunal of fact to hold that the offer was accepted according to its terms… The ultimate issue is whether a reasonable bystander would regard the conduct of the offeree, including his silence, as signalling to the offeror that his offer has been accepted. … The case is not so much one of acceptance by silence as one of taking the benefit of an offer with knowledge of its terms and knowledge of the offeror's reliance on payment being made in return for his work…" 37. Heydon JA (as His Honour then was) applied that test and made the following observations in Brambles Holdings Ltd v Bathurst City Council (emphasis added): "[81] In the light of the above cases, it is relevant to ask: in all the circumstances can an agreement be inferred? Has mutual assent been manifested? What would a reasonable person in the position of the Council and a reasonable person in the position of the defendant think as to whether there was a concluded bargain? [82] Applying the test stated by McHugh JA in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd, the 19 September 1991 letter offered "services" in the sense of a commercial benefit. The commercial benefit was a contractual right, which had not existed before, to charge up to 6 cents per litre and retain 1.1 of that 6 cents…. The parties had treated the 9 January and 20 February 1990 letters as having conferred that benefit in a practical sense, but the conferral of the benefit lacked contractual backing. The defendant, as offeree, had a reasonable opportunity to reject the offer: indeed, initially it did reject the offer. However, it soon took advantage of the benefit offered. It knew that the only basis on which the Council was prepared to permit the higher prices to be charged and the 1.1 cents retained as a matter of contractual right was the basis stated in the 19 September 1991 letter. … 38. The principles in Empirnall Holdings were recently confirmed by the Court of Appeal in Forte Sydney Construction Pty Ltd v N Moit & Sons (NSW) Pty Ltd: An offeree who has omitted to accept an offer, but has nonetheless taken the benefit of that offer will be bound by the contract (Empirnall Holdings at 535 per McHugh JA). 39. Ms Tang does not dispute that she obtained the relevant benefits of the plaintiff's loan, being that she obtained ownership of the Property and earned rental income during the period of her ownership. 40. Ms Tang admits that she intended to borrow funds to purchase the Property. Her solicitor was clearly aware that she was borrowing funds for the purchase, and given his contact with the plaintiff's solicitors, it would be inferred that Ms Tang's solicitor was aware of the identity of the plaintiff. 41. In April 2017 Ms Tang received correspondence from her broker which made it clear beyond all doubt that her loan was obtained from the plaintiff, and the information provided included details about interest rates. The broker's email (incorrectly) stated that the interest rate was 7.99%. 42. In October 2017 Ms Tang admits she received the Agreement. 43. Despite references to some intention to sell the Property or refinance the debt, Ms Tang failed to do either. Further, she pursued complaints which prevented the plaintiff from taking enforcement action until late 2019. During that time Ms Tang had the benefit of ownership, including rental income from the Property. 44. Even on Ms Tang's own evidence it is clear that by no later than April 2017 she became aware that the plaintiff was the lender, and from that time, in light of the principles set out above: (a) she had "a reasonable opportunity to reject the offer" as set out in the Agreement by returning the loan funds to the plaintiff by refinance or sale, but she chose not to do either and instead decided to retain the funds for her own benefit; and (b) she took "the benefit of an offer with knowledge of its terms and knowledge of the offeror's reliance on payment being made", by retaining the funds in full knowledge that the plaintiff would charge interest on those funds in accordance with the Agreement. 45. In those circumstances, Ms Tang's conduct in retaining the funds and obtaining a benefit from them constitutes her acceptance of the terms of the Agreement. Whether that acceptance occurred in March, April or October 2017, Ms Tang was aware that, pursuant to the express terms of the Agreement, interest would be charged at rates set out in the Agreement and that interest would be charged for the period from drawdown until the loan was repaid in full. 46. It follows that Ms Tang is liable to pay interest calculated in accordance with the terms of the Agreement for the entire period of the loan, as recorded in the account statements. Ms Tang is also liable for costs and other charges in accordance with the Agreement."
20. I generally accept the plaintiff's characterisation of the defendant's conduct from at least October 2017.
21. Whilst the peculiar circumstances of this case are that the defendant received the "initial benefit" of the transaction on the date of settlement when she received the loan advance and used it to purchase the Parramatta property in her own name, it seems to me that if the true position was that there was no formal written loan agreement at that time, and the terms of the loan as between the parties had not been settled as between them the receipt of the documents in October 2019 amounted to a clear offer by the plaintiff to the defendant that if she wished to continue to have the benefit of the monies it had advanced, it was to be on the terms of the proffered document (being the written loan agreement). From that point in time, the defendant had the option of either accepting that offer or rejecting it. It is significant that the defendant said she was rejecting it and was going to repay the money but then by her conduct did the exact opposite. The defendant chose to continue to accept the benefits conferred on her by the loan from the plaintiff. In my judgment, she must be taken by that conduct to have accepted the terms of that offer. Not only did that offer deal with the situation going forward, it also dealt with liabilities that had already arisen, which included interest up to that time and the charges including the establishment fee.
22. For those reasons I have concluded, notwithstanding the fact that the plaintiff has failed to prove that the defendant signed the loan agreement, that in all the circumstances, her conduct was such that the lack of formal execution does not have the consequence that she is not bound by the terms of the written agreement. She is bound by the terms of Written Agreement because judged objectively her conduct was such that she accepted those terms.
23. The same result is probably arrived at by reference to principles of common law estoppel based on a mutual/conventional understanding by the parties as to the terms of the loan from that time on.

Alternative

1. If I am wrong about all of that, it does seem to me entirely clear that there would be a term implied into the loan agreement to the effect that the loan would be repayable on demand and that interest would be payable. How such interest is to be calculated is an interesting and difficult question. It was discussed by Young CJ in Eq in Gray v Gray [2004] NSWCA 408 [73] - [80].
2. However, in this case I do not think it is difficult at all. The starting point is the defendant accepts that anything up to 5% would be to her mind reasonable. Moreover, I think I could take into account the findings of the AFCA which included a finding that an amount of 7.99% was "fair and reasonable".
3. How the arithmetic would pan out if the matter was dealt with by reference to either of those rates is something I do not need to deal with because I have decided that the defendant is liable and bound to the terms of the written document.

Australian Credit Licence

1. The defendant contends that the plaintiff at the relevant time did not hold an Australian credit licence pursuant to regulation 23B of the National Consumer Credit Protection Regulations 2010 (Cth).
2. The plaintiff accepts that it did not hold such a licence but has made detailed submissions as to why it is that it was not required to be licensed.
3. I don't think that matters because there is nothing that I am aware of in the relevant legislation to the effect that if the plaintiff was required to hold such a licence and did not, it would in some way be precluded from recovering its debt.

Quantum, interest and costs

1. The statement of claim as amended claims an amount of $135,350.13 up to 17 August 2022 and interest under the Civil Procedure Act 2005.
2. On the basis of my findings that the defendant is bound by the terms of the written Agreement, I am satisfied that the amount of $135,350.13 was due and payable by the defendant to the plaintiff as at 17 August 2022.
3. It was suggested in submissions that I should award interest pursuant to s 100 of the Civil Procedure Act at the rate prescribed by the contract. I understand that as a discretionary matter which is available to me but I think in the circumstances I will do no more than order interest to be payable from 17 August 2022 at the rates prescribed from time to time by the Civil Procedure Act.
4. As to costs there is an "indemnity costs" provision in the written agreement. However, as no notice was given to the defendant of a claim for anything other than costs on the ordinary basis, I am not prepared to do anything other than make an order for costs in the usual way.

Conclusion

1. For those reasons I: 1. Order the defendant pay the plaintiff the sum of $135,350.13 together with interest at the rates prescribed from time to time under the Civil Procedure Act 2005 (NSW) from 17 August 2022 until 15 December 2023 as agreed between the parties as $12,272.34. 2. Judgment for the plaintiff in the sum of $147,622.47. 3. Order the defendant pay the plaintiff's costs of the proceedings.

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