83 The sixth instance was that at one point in her evidence the plaintiff denied having any idea of what the value of the Property was on 23 July 2001. However, at another stage in her evidence it emerged that she had probably told her solicitor, Mr Lefebvre, on 31 October 2001, that the Property had an estimated value of $380,000. There was no evidence of an intervening valuation of Property during that period.
84 Finally, it was submitted by Ms Loughnan that the plaintiff's answers to questions about her allowing Mr Wenczel to hold a key to the home after the date of separation were evasive and unconvincing, and that the answers given in re-examination were not consistent with those already given in cross-examination.
85 I consider these last three criticisms of the plaintiff's evidence to be relatively minor and largely irrelevant to the question of her credibility as a witness.
86 The obvious but nevertheless very important point to be made about the evidence of the CBA branch officers, Carol Taylor, Julie Hunter, Zuleyha Elibol and Uta Hillinger, is that they had very limited recollection and knowledge of the facts giving rise to this dispute. For example, Ms Taylor, the purported witness of the plaintiff's signing of the Guarantor's Declaration, admitted that she had absolutely no recollection of the sign-up process. It was also clear from the evidence that she also had no recollection of the transaction when the question of the false witnessing of the Guarantor's Declaration was first raised by the plaintiff's solicitors in December 2002. Indeed, when first asked about this event, Ms Taylor was misled by the terms of the Diary Memorandum into stating that she "would have worked on the file while at Sunbury branch", when she was relieving there, whereas as previously stated she was actually at the Gisborne branch on the date the documents were signed.
87 This is not a criticism of these witnesses because it was to be expected that they would have difficulty in remembering the details of this transaction given that they would have been involved in numerous other transactions in the intervening period of nearly four years. Nevertheless, it has to be recognised that their evidence was largely, if not totally, based on reconstructing from the documents what they thought had occurred and relying on the belief that they "would" have followed the CBA policy.
88 I consider that such evidence is to be given less weight than sworn evidence of actual and clear recollection if the evidence of purported recollection is otherwise credible. The inference that the relevant CBA branch officer or officers followed the Code of Banking Practice in respect of the witnessing of the Guarantor's Declaration because she or they always followed the Code was not easily drawn given that there was evidence of other instances of non-compliance with the Code.
89 A further matter to consider is the CBA's submission that the appropriate adverse inferences should be drawn pursuant to the principle in Jones v Dunkel[1] in respect of the plaintiff's failure without explanation to call Mr Wenczel, Mr Prendergast, Mr Lefebvre or Ms Cooney as witnesses. It is clear, however, that the principle cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness[2], or "the missing witness would be expected to be called by one party rather than another."[3] Further, the principle cannot be applied unless the missing witness' "evidence would elucidate a particular matter."[4]
90 Ms Loughnan submitted that Mr Wenczel should be seen as clearly being in the plaintiff's camp. He had provided the statement and could have supported by evidence on oath the plaintiff's version of events. I do not agree. It seems to me to be quite unrealistic to suggest that the plaintiff should have called her ex-husband to give evidence that he had forced his then wife to sign a document and that he had then arranged for his friend to falsely witness the plaintiff's signature. Obviously, neither the CBA nor the plaintiff were prepared to run the risk of calling Mr Wenczel, helpful though his honest evidence would have been, and no adverse inference should be drawn against the plaintiff for not calling him. I note in passing that I have placed virtually no weight on Mr Wenczel's unsworn statement, about which he was not cross-examined.
91 I also consider that Mr Prendergast cannot be regarded as a witness that the plaintiff might reasonably have been expected to call. On the plaintiff's version, Mr Prendergast must have falsely witnessed her signature. No adverse inference can therefore be drawn from the non-calling of him as a witness.
92 Given that both Mr Lefebvre's notes and Ms Cooney's notes of their initial conferences with the plaintiff were tendered in evidence, I have difficulty in understanding why it was said that they should have been called as witnesses, particularly when Ms Cooney's notes contained the reference to the plaintiff being forced to sign. As over three years had elapsed since Mr Lefebvre's meeting with the plaintiff, I am prepared to proceed on the basis that he could add nothing to what he had recorded in his notes. In the circumstances, I consider that no adverse inference can be drawn against the plaintiff for not calling either Mr Lefebvre or Ms Cooney.
93 I turn then to my factual findings about the events surrounding the signing by the plaintiff of the Mortgage, the Guarantor's Declaration and the Acknowledgement on 23 July 2001.
94 First, I accept the plaintiff's evidence that she reluctantly signed these documents in the kitchen of her home at about 4.30 p.m. on that day as a result of the pressure imposed on her by Mr Wenczel. Her evidence about this aspect was supported in all relevant respects by the evidence of her children, Luke and Olivia. I find that Luke Wenczel and Olivia Wenczel were truthful and credible witnesses.
95 I further find that Mr Wenczel brought these documents to the Property on that occasion and that they were not posted to the plaintiff. I accept Luke Wenczel's evidence that his father had telephoned earlier on 23 July to say that he would come later that day and that he arrived at the Property with a bundle of papers in his hand. I find that Mr Wenczel had collected the letter addressed to his wife and the enclosed documents, the letter addressed to him and the enclosed guarantee, and the other documents required to be signed on behalf of WCS such as the Acknowledgement, from the Northern Ranges office on 23 July 2001. Although Ms Hillinger denied that she would have ever given an envelope containing documents to a person on behalf of the mortgagor for the purpose of delivering the sealed envelope to the mortgagor, Ms Elibol conceded that in urgent situations she may have done so. This was contrary to the CBA's Code of Banking Practice. That Mr Wenczel was at the Northern Ranges office on or about 23 July is supported by two facts. First, the Statement of Solvency signed by Mr Wenczel was dated 23 July 2001 by Ms Hillinger. She agreed that there was no need to back date such a document and that in the usual course she would date the document on the day it was signed. Secondly, no letter addressed to WCS enclosing the other documents required to be signed on its behalf, such as the Acknowledgement, was discovered by the CBA. This suggests to me that these documents were collected in person by Mr Wenczel and not posted to the company.
96 The plaintiff denied ever seeing or receiving the letter addressed to her from the CBA dated 19 July 2001 or the Guarantor's booklet. No such documents were discovered by her. The plaintiff was a methodical and well-organised person, evidenced by her meticulous maintenance of household records, supermarket dockets, bank statements, individual payslips and the like. I accept that if she had received such documents they would have been retained in her files. It is also instructive that the relevant entry on the action sheet for "Documents sent to client" bore no date, merely a tick and initials by Ms Hillinger. One possible explanation for the omission of a date was that the documents, including the documents for the guarantor and third party mortgagor, were not posted but handed to Mr Wenczel, and that Ms Hillinger later ticked the box knowing by then that the relevant documents had been returned, so that they must have been sent at some earlier unknown date.
97 All of this evidence is supportive of the finding that Mr Wenczel was entrusted with the relevant documents, including the documents intended for the plaintiff, by someone at the Northern Ranges office on 23 July 2001.
98 Next, I find that the plaintiff did not attend at the CBA's Gisborne branch on 23 July 2001 and sign the Guarantor's Declaration in the presence of Ms Taylor. Her denial that she did go to the Gisborne branch was supported by a number of matters.
99 First, the CBA's letter of 19 July 2001 purporting to enclose the security and other relevant documents requested that the plaintiff telephone "Zuleyha" at the Northern Ranges Small Business Centre to arrange a time to call and sign the documents. As discussed earlier, the security documents were not received at the North Ranges branch until 20 July 2001, which was a Friday, and therefore, even if they were posted that same day, they could not have arrived at the plaintiff's mail box until Monday 23 July 2001. This was therefore the first opportunity the plaintiff would have had to contact Ms Elibol as requested. However, the plaintiff's telephone records indicate that no call was made to that destination on 23 July 2001, nor any day immediately prior thereto. Ms Elibol confirmed that she had no recollection of the plaintiff contacting her. In the absence of a telephone call to Ms Elibol, the plaintiff could not have known that she could attend the Gisborne branch, as opposed to the Northern Ranges branch or some other branch, for the sign up.
100 Secondly, the branch diaries for the Gisborne and Sunbury branches for 23 July 2001 make no reference to an appointment made by Mrs Wenczel. Without an appointment the plaintiff probably would not have been able to gain admittance to a branch after 4.00 p.m.
101 Thirdly, it would seem that the plaintiff was not physically able to attend the Gisborne branch on 23 July 2001. On that day she was working at the Marist Brothers' Retreat Centre between 11.00 a.m. and 3.00 p.m. Brother Jack Skehan, her supervisor, gave evidence that he would have noticed the plaintiff's absence from work during those hours. The plaintiff gave evidence that she would not have checked the mail before work, and in any case would not have had time call into the Gisborne branch before work. She further gave evidence that she would not have attended the Gisborne branch in her smelly work clothes. I have no doubt that this particular statement by the plaintiff was truthful. Thus, the plaintiff would have had only one hour between finishing work and the bank closing, to return from work, check the mail, decide what to do about this requested financial commitment, change her clothes, drive to the Gisborne branch and meet Ms Taylor. She would then have had to leave the bank before 4.00 p.m. in order for her to be at home when her daughter, Olivia, arrived home from school at 4.10 p.m. I find it improbable that all this could be physically achieved in one hour. In any case, Olivia gave evidence that when she arrived home her mother was still in her Marist Brothers uniform. Moreover, Luke's evidence was that his mother did not leave home after she returned from work.
102 It was submitted on behalf of the CBA that the most likely scenario was that the plaintiff went to the Gisborne branch between 10.00 and 11.00 on the morning of 23 July. I do not accept that this occurred. It would mean that the plaintiff brought in the mail as soon as it arrived, which she said she did not do, opened the envelope from the CBA, read the enclosed documents and decided of her own free will to drive to the Gisborne branch with the unsigned Guarantor's Declaration without contacting "Zuleyha" at the Northern Ranges office as instructed in the letter, explained why she had come to the branch, met Ms Taylor and answered her questions, left the branch and driven to work and been able to start on time, all in the space of less than an hour. In my opinion, it is a most unlikely scenario. Moreover, it is completely contrary to the credible evidence of the plaintiff and her two children about the events of that afternoon.
103 Obviously, the most difficult obstacle confronting acceptance of the plaintiff's account is that the signing of the Guarantor's Declaration by the plaintiff was purportedly witnessed by Ms Taylor. Nevertheless, I have concluded that in the light of the plaintiff's evidence I cannot accept that Ms Taylor witnessed the plaintiff signing the Guarantor's Declaration or took her through the required question and answer session to establish that she did not want legal advice and that she understood the general nature and effect of what she was signing.
104 First, as previously discussed, there is the fact that Ms Taylor had no recollection of the transaction and therefore could only give evidence of what she would or would not have done. This was to be compared with the plaintiff's consistent and unequivocal denial that she had signed any documents in front of Ms Taylor at the Gisborne (or the Sunbury) branch on 23 July 2001.
105 Secondly, there were the problems surrounding the Diary Memorandum, which was intended to be the CBA's contemporaneous record of the sign up. According to the CBA's Code of Banking Practice, a short diary note was to be made "once the documents and declaration have been signed" and the note then attached to the signed declaration. It is implicit in this instruction that it is the bank officer who asked the required questions and witnessed the signing who should make the contemporaneous record of what had occurred. As previously discussed, this is not what occurred on this occasion. No contemporaneous note of what had occurred on 23 July was prepared by Ms Taylor and attached to the signed declaration. Instead, the Diary Memorandum was prepared in standard form probably by Ms Hillinger on 24 or 25 July and faxed to Ms Taylor for her signature on 25 July. The signed Memorandum was faxed back to Ms Hillinger on the same day, but the original Memorandum ended up at the Brimbank branch on 7 August 2001. Presumably, at some stage the copy or the original Memorandum was attached to the signed declaration by Ms Hillinger.
106 The fact that the Diary Memorandum drafted by Ms Hillinger showed Ms Taylor as being at the Sunbury branch suggests that there was very little, if any, discussion between Ms Taylor and Ms Hillinger before the Memorandum was prepared. Otherwise Ms Taylor would have been described as being at the Gisborne branch because the Memorandum was clearly intended to look like a contemporaneous document, thus the date 23 July 2001, even though it was not signed on that day. The fact that Ms Taylor did not correct the reference to the Sunbury branch suggests at the very least that she did not pay much attention to the wording of the Memorandum. Otherwise, one might have expected that she would have changed the branch name to Gisborne, being the branch where she allegedly witnessed the signing, or to Watergardens, being the branch where she was signing the Memorandum. Either way, there was no reason to mention the Sunbury branch. The fact that Ms Taylor failed to follow the correct procedure and to correct any of these errors raises doubts in my mind about the extent of her involvement in the sign up.
107 Finally, there is the issue of how Ms Taylor knew what to do with the documents once she had spoken to the plaintiff and how the documents went from the Gisborne branch to the Northern Ranges office.
108 The Guarantor's Declaration was not date stamped, which it should have been if it had been received at the Northern Ranges office through internal mail. This was the means by which Ms Taylor suggested, in the absence of actual recollection, that she would have forwarded it to that office. Ms Taylor said it was usual for documents sent through the Bank's internal mail system to be date stamped on receipt, while documents handed "over the counter" or sent by fax were not date stamped.
109 One matter arguably lending some support to the CBA's version of events was the expert evidence of Mr Neil Holland that it was highly probable that the plaintiff's signature and Ms Taylor's signature were both written using the same black paste ink and that this ink matched an ink used in Bic brand writing instruments. However, Mr Holland also concluded that he was unable to establish that the same writing instrument was used for both signatures. Given what I understand to be the popularity of this type of biro, I cannot rule out that this was simply a coincidence.
110 Moreover, Mr Klempfner criticised the failure of the CBA to instruct the handwriting expert to examine the ink paste used in the plaintiff's other original signatures, on the Mortgage and the Acknowledgement, and Mr Wenczel's signatures on his Guarantee, the Mortgage and the Acknowledgment. Given that the Diary Memorandum suggested that the Debtor was not present during the questioning period it would have been of assistance to know whether the expert held the opinion that the ink paste used in Mr Wenczel's signatures was the same as the ink paste appearing on the Guarantor's Declaration. Finally, Mr Klempfner drew attention to the fact that the plaintiff's evidence that Mr Wenczel handed her the pen with which she signed the documents was not challenged by the CBA. All in all, it was hard to see that the limited expert evidence took the matter any further.
111 Although in one sense the plaintiff was not required to establish how it came about that the CBA held a Guarantor's Declaration signed by her and witnessed by Ms Taylor and the Mortgage signed by her and witnessed by Mr Prendergast and the Acknowledgement signed by her, it was obviously helpful to acceptance of her version of events if the relevant circumstances could be satisfactorily explained. It seems to me that what probably occurred was that after the plaintiff had signed the three documents in question, Mr Wenczel took them on the same day to his friend Mr Prendergast who witnessed Mr Wenczel's signature on the Guarantee and purportedly witnessed the plaintiff's signature on the Mortgage. Early on the following day, Mr Wenczel took the documents back to the Northern Ranges office and somehow or other persuaded one of the CBA's officers that there was no issue about his wife's agreement and that officer asked Ms Taylor, who like Ms Hunter had the necessary seniority to witness such a document, to sign as witness in order to avoid having to trouble Mrs Wenczel to come in to the office in Melton to sign again. Ms Hunter was not available because she was about to go on long service leave. It was possible that Ms Taylor was present at the Northern Ranges office early that morning prior to going out to perform her relieving duties at the Sunbury branch. She may even have been present to ascertain at which branch she was rostered to relieve. (Of course, that possibility also means that this was how Ms Taylor delivered the documents signed at the Gisborne branch to the Northern Ranges office without using the internal mail.) All of the undated documents were then dated "25/07/01" probably by Ms Hillinger when she was finalising the funding arrangements on that day.
112 The suggestion that officers of the CBA flagrantly disregarded their instructions on the correct procedure for completing various documents and indeed falsely purported to have told the plaintiff certain required information and witnessed her signature is a serious one and is not to be made lightly. However, this conclusion is more easily reached when the true circumstances of the creation of the Diary Memorandum are understood and when it is appreciated that other breaches of the CBA's Code of Banking Practice occurred. In particular, nowhere in the letter of 19 July 2001 was there any reference to the CBA forwarding to the plaintiff information about Mr Wenczel's financial position or the way in which the proposed loan was to be disbursed. Indeed, until Mr Wenczel signed the Consent to Disclose Information form, which was dated 25 July 2001, it would have been contrary to the CBA's Code of Banking Practice to disclose any such information to the plaintiff. If Mr Wenczel did not sign that document until 24 or 25 July, then no relevant information could have been disclosed to the plaintiff before she signed the Guarantor's Declaration or if it were disclosed it was in breach of the CBA's Code. In any event, Ms Taylor was never in a position at the Gisborne branch to explain the detail of WCS's or Mr Wenczel's financial position to the plaintiff before she signed the Guarantor's Declaration and handed over the Mortgage.
The Plaintiff's Causes of Action
113 In his submissions on behalf of the plaintiff, Mr Klempfner pointed out that the plaintiff's four causes of action, the "married woman's equity", undue influence, duress and unconscionability, all arose out of the same set of facts. He submitted that it was neither surprising nor inappropriate that the causes of action overlapped to a considerable degree, rather than being mutually exclusive. For example, in Commercial Bank of Australia Ltd v Amadio[5] Mason J, after identifying the essential difference between unconscionable conduct and undue influence, went on to comment: