The Queen v Hitzke[2018] QDC 207

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application by the defence at the close of the Crown case for a ruling that there is no case to answer.

2. [2]
   For the purpose of this submission I must take the Crown case at its highest and leave it to the jury even if there is tenuous or weak evidence.^[1] 

3. [3]
   There is also an application by the Crown to amend its particulars.

Charge

4. [4]
   The defendant is charged with the following count:

“That on divers dates between the 11^th day of August, 2009 and the 29^th of March, 2012 at Brisbane or elsewhere in the state of Queensland, the defendant dishonestly induced BOQ Equipment Finance Limited [or their agents] to deliver property to another person and the property was of a value of more than $30,000.”

5. [5]
   After two days of argument at the commencement of the trial, the Crown provided written particulars of the allegations. They read as follows:

“Crown particulars

The defendant was a director and shareholder of Jestrose Pty Ltd.

The defendant is alleged to have committed six transactions alleged to be fraudulent.

John Vincent Hitzke is a principal offender under s 7(1)(a) for doing an act that was part of the offence, and/or a party under s 7(1)(d) for counselling or procuring Roy Frederick Christie to commit the offence.

Roy Frederick Christie operated a business trading as South East Queensland Chiropractic Table Sales and Service, and was a distributor of Hill Laboratories chiropractic equipment.

TRANSACTION 1

1. Hitzke prepared, or counselled or procured Christie to prepare, an invoice dated 12 August 2009 to be included in an application to BOQ Equipment Finance Limited for a hire purchase agreement in favour of Jestrose Pty Ltd in the sum of $167,700.

2. The goods to be purchased by the complainant were chiropractic tables.

3. That invoice was included in an application prepared by a finance broker on behalf of Hitzke and submitted to BOQ Equipment Finance Limited.

4. On 21 August 2009 BOQ Equipment Finance Limited deposited $167,700 to the NAB bank account 084-269 47-662-8485 in the names of Roy Frederick Christie and Shirley Elizabeth Christie (“Christie account”).

5. The preparation of the invoice was dishonest, which may be inferred from the following:

• The price shown on the invoice was grossly inflated above the value of the goods; and/or
• The goods specified on the invoice were never ordered by Christie; and
• Hitzke received the funds from Christie for the benefit of Jestrose Pty Ltd.
• The only rational inference is that Hitzke intended to obtain the funds for his own use and/or Jestrose Pty Ltd.

6. BOQ Equipment Finance Limited processed the application through its employees, who acted on the basis that the invoice was true and accurate, in circumstances where:

• Nadia Skliros signed the approval for the payment, after validating the invoice,  and by inference the employee who accepted her recommendation for approval authorised the payment; and/or
• By inference, the false invoice was the operative inducement resulting in the deposit of $167,700 to the Christie account.

TRANSACTION 2

1. Hitzke prepared, or counselled or procured Christie to prepare, an invoice dated 24 February 2011 to be included in an application to BOQ Equipment Finance Limited for a hire purchase agreement in favour of Jestrose Pty Ltd in the sum of $98,000.

2. The goods to be purchased by the complainant were a chiropractic table and ultrawave therapy system.

3. That invoice was included in an application prepared by a finance broker on behalf of Hitzke and submitted to BOQ Equipment Finance Limited.

4. On 15 March 2011 BOQ Equipment Finance Limited deposited $98,000 to the NAB bank account 084-269 47-662-8485 in the names of Roy Frederick Christie and Shirley Elizabeth Christie (“Christie account”).

5. The preparation of the invoice was dishonest, which may be inferred from the following:

• The price shown on the invoice was grossly inflated above the value of the goods; and/or
• The goods specified on the invoice were never ordered by Christie; and
• Hitzke received the funds from Christie for the benefit of Jestrose Pty Ltd.
• The only rational inference is that Hitzke intended to obtain the funds for his own use and/or Jestrose Pty Ltd.

6. BOQ Equipment Finance Limited processed the application through its employees, who acted on the basis that the invoice was true and accurate, in circumstances where:

• Peter Robertson signed the approval advice of the application; and/or
• By inference, the provision of the false invoice was the operative inducement resulting in the deposit of $98,000 to the Christie account.

TRANSACTION 3

1. Hitzke prepared, or counselled or procured Christie to prepare, an invoice dated 13 June 2011 to be included in an application to BOQ Equipment Finance Limited for a hire purchase agreement in favour of Jestrose Pty Ltd in the sum of $97,757.

2. The goods to be purchased by the complainant were 2 x chiropractic tables.

3. That invoice was included in an application prepared by a finance broker on behalf of Hitzke and submitted to BOQ Equipment Finance Limited.

4. On 20 June 2011 BOQ Equipment Finance Limited deposited $97,757 to the NAB bank account 084-269 47-662-8485 in the names of Roy Frederick Christie and Shirley Elizabeth Christie (“Christie account”).

5. The preparation of the invoice was dishonest, which may be inferred from the following:

• The price shown on the invoice was grossly inflated above the value of the goods; and/or
• The goods specified on the invoice were never ordered by Christie; and
• Hitzke received the funds from Christie for the benefit of Jestrose Pty Ltd.
• The only rational inference is that Hitzke intended to obtain the funds for his own use and/or Jestrose Pty Ltd.

6. BOQ Equipment Finance Limited processed the application through its employees, who acted on the basis that the invoice was true and accurate, in circumstances where by inference the provision of the false invoice was the operative inducement resulting in the deposit of $97,757 to the Christie account.

TRANSACTION 4

1. Hitzke prepared, or counselled or procured Christie to prepare, an invoice dated 30 June 2011 to be included in an application to BOQ Equipment Finance Limited for a hire purchase agreement in favour of Jestrose Pty Ltd in the sum of $60,500.

2. The goods to be purchased by the complainant was one chiropractic table.

3. That invoice was included in an application prepared by a finance broker on behalf of Hitzke and submitted to BOQ Equipment Finance Limited.

4. On 16 September 2011 BOQ Equipment Finance Limited deposited $60,500 to the NAB bank account 084-269 47-662-8485 in the names of Roy Frederick Christie and Shirley Elizabeth Christie (“Christie account”).

5. The preparation of the invoice was dishonest, which may be inferred from the following:

• The price shown on the invoice was grossly inflated above the value of the goods; and/or
• The goods specified on the invoice was never ordered by Christie; and
• Hitzke received the funds from Christie for the benefit of Jestrose Pty Ltd.
• The only rational inference is that Hitzke intended to obtain the funds for his own use and/or Jestrose Pty Ltd.

6. BOQ Equipment Finance Limited processed the application through its employees, who acted on the basis that the invoice was true and accurate, and by inference the provision of the false invoice was the operative inducement resulting in the deposit of $60,500 to the Christie account.

TRANSACTION 5

1. Hitzke prepared, or counselled or procured Christie to prepare, an invoice dated 1 November 2011 to be included in an application to BOQ Equipment Finance Limited for a hire purchase agreement in favour of Jestrose Pty Ltd in the sum of $68,750.

2. The goods to be purchased by the complainant was a chiropractic table.

3. That invoice was included in an application prepared by a finance broker on behalf of Hitzke and submitted to BOQ Equipment Finance Limited.

4. On 7 November 2011 BOQ Equipment Finance Limited deposited $68,750 to the NAB bank account 084-269 47-662-8485 in the names of Roy Frederick Christie and Shirley Elizabeth Christie (“Christie account”).

5. The preparation of the invoice was dishonest, which may be inferred from the following:

• The price shown on the invoice was grossly inflated above the value of the goods; and/or
• The goods specified on the invoice were never ordered by Christie; and
• Hitzke received the funds from Christie for the benefit of Jestrose Pty Ltd.
• The only rational inference is that Hitzke intended to obtain the funds for his own use and/or Jestrose Pty Ltd.

6. BOQ Equipment Finance Limited processed the application through its employees, who acted on the basis that the invoice was true and accurate, in circumstances where:

• Erin Ridsdale authorised the settlement of the application; and/or
• By inference, the provision of the false invoice was the operative inducement resulting in the deposit of $68,750 to the Christie account.

TRANSACTION 6

1. Hitzke prepared, or counselled or procured Christie to prepare an invoice dated 15 March 2012 to be included in an application to BOQ Equipment Finance Limited for a hire purchase agreement in favour of Jestrose Pty Ltd in the sum of $289,500.

2. The goods to be purchased by the complainant were 4 x chiropractic tables.

3. That invoice was included in an application prepared by a finance broker on behalf of Hitzke and submitted to BOQ Equipment Finance Limited.

4. On 20 March 2012 BOQ Equipment Finance Limited deposited $289,500 to the NAB bank account 084-269 47-662-8485 in the names of Roy Frederick Christie and Shirley Elizabeth Christie (“Christie account”).

5. The preparation of the invoice was dishonest, which may be inferred from the following:

• The price shown on the invoice was grossly inflated above the value of the goods; and/or
• The goods specified on the invoice were never ordered by Christie; and
• Hitzke received the funds from Christie for the benefit of Jestrose Pty Ltd.
• The only rational inference is that Hitzke intended to obtain the funds for his own use and/or Jestrose Pty Ltd.

6. BOQ Equipment Finance Limited processed the application through its employees, who acted on the basis that the invoice was true and accurate, in circumstances where:

• Erin Ridsdale authorised the settlement of the application; and/or
• By inference, the provision of the false invoice was the operative inducement resulting in the deposit of $289,500 to the Christie account.”

Summary of the evidence

Roy Christie

6. [6]
   Mr Roy Christie was conjointly charged with the defendant. He pleaded guilty to the charge on 29 January 2018 pursuant to the provisions of s 13A of the Penalties and Sentences Act 1992 (Q). He received a three year fully suspended sentence. He gave evidence by way of pre-recording at the trial. He said that he operated a business called South East Queensland Chiropractic Table Sales and Service between about 2001 and 2012. The business acquired chiropractic and physiotherapy tables from a company in the United States (Hill Laboratories Company) and resold them in Australia and he also performed services on them.^[2]

7. [7]
   He knew the defendant who was a chiropractor. He sold tables purchased from Hill Laboratories Company to the defendant and performed services on them.^[3]He gave evidence that the most expensive table he acquired from Hill Laboratories Company was around about $8,000.^[4]

8. [8]
   With respect to Transaction No.1 in the amount of $167,700 he was shown the relevant invoice.^[5]He claimed that the invoice was false.^[6]He said that the price was definitely wrong.^[7]He denied producing the document and said that the defendant had access to his printer.^[8]He claimed the defendant also used his fax machine. He said that the defendant told him that Mr Delaney wanted the document urgently.^[9]He claimed the defendant came over and typed it because it was quicker.

9. [9]
   With respect to the second transaction of $98,000, the witness said the prices were wrong.^[10]He was not 100 per cent sure who produced the document but he would not make it out at that price and the defendant used to do it because he could not type.^[11]

10. [10]
    With respect to Transaction No.3 in the amount of $97,757.00^[12]he claimed that no one had ordered any of those tables.^[13]He thought the defendant would have produced the invoice and faxed it off.^[14]

11. [11]
    With respect to Transaction No.4 in the amount of $60,500^[15] he said that the amount in the invoice was way out.^[16]He said he would normally charge $1,800 to $2,000 per table.^[17]

12. [12]
    With respect to Transaction No.5 in the amount of $68,050.00^[18]he said that the format of the invoice did not look right.^[19]He thought the value of the table was from about $3,000 to $8,000 maximum and the value on the invoice was too dear.^[20]

13. [13]
    With respect to Transaction No.6 in the amount of $289,500^[21]he said it was a ridiculous price. He “would say the defendant” produced the invoice.^[22]

14. [14]
    He then gave evidence the defendant used to ring him to find out if the money had gone into his account.^[23]Money went into his account and he gave bank cheques to the defendant with respect to the deposits. He agreed that he had ordered ten tables.^[24]He saw the tables at a hanger in Caboolture in cartons.^[25]

15. [15]
    In cross-examination he admitted preparing a file note in which he stated regarding Transaction No.1, that the defendant came to his place and requested that Christie prepare the invoice and they faxed it to his finance company.^[26]He also said that his recollection memory was gone.^[27]He accepted that he decided to plead guilty to the charges but he pleaded guilty to letting the defendant use his equipment, nothing else.^[28]He also agreed that in the file note he said that “this happened some three or four times.”^[29]He said he was getting a little bit suspicious.^[30]He said in his previous statement that he asked the defendant whether it was lawful.^[31]He denied making out any of the invoices.^[32]He could not explain his statement in the file note. He gave evidence that “he [Hitzke] requested that I make out an invoice to which he nominated which I carried out of his request.”^[33]He did not recall the deal which led to him staying out of jail.^[34]He was informed that the plea of guilty was his best chance of staying out of jail.^[35]In a second document of notes he again repeated that the defendant had requested that he make out the invoice.^[36]He understood by the invoices that the defendant was raising funds and accepting a liability to repay those funds.^[37]

16. [16]
    Turning to the invoice the subject of Transaction No.1,^[38] he could not say whether the three chiropractic tables ended up with the defendant.^[39] He claimed that the defendant did the invoice himself.^[40] He agreed that the defendant said he needed to refinance and get an invoice to show them what he had.^[41] He couldn’t explain why it was faxed at 9.51 pm.^[42] He said the defendant was definitely not at his house at this time.^[43]

17. [17]
    With respect to Transaction No.2^[44]he agreed it was produced by his computer. He had no recollection of the defendant coming to his home and using the computer to produce that document.^[45]

18. [18]
    With respect to Transaction No.3^[46]he did not remember the document other than it was false.^[47]

19. [19]
    With respect to Transaction No.4^[48]he supplied the defendant many tables but not that one at that price.^[49]He did not know whether he supplied it or not.^[50]He could not give any evidence as to who prepared the document.^[51]

20. [20]
    With respect to Transaction No.5 he had no recollection of who prepared the invoice.^[52]The defendant would have had something to do with it but he did not recall this.^[53]

21. [21]
    The witness was then cross-examined about whether he had prepared invoices with highly inflated prices in respect of other matters. He did not seem to recall any of this. He agreed that he had given the money from his account to the defendant.^[54]He claimed that he did not understand the undertaking to give evidence.^[55]

22. [22]
    I might say I found Mr Christie to be a most unimpressive witness. I found him to be non-responsive and argumentative. He claimed he was innocent but pleaded guilty. He gave quite unbelievable evidence he was not aware of the “deal” until after it happened. I did not believe him when he said he did not fax the invoice the subject of Transaction No.1.

23. [23]
    I can perfectly understand why the Arresting Officer had concerns about doing the “13A deal” because of Mr Christie’s credibility.^[56]  

Bryan Chinnery

24. [24]
    The relevant documents the subject of each transaction were produced by the witness, Bryan Chinnery.

25. [25]
    Turning to Transaction No.1, the bank documents concerning this transaction were tendered as Exhibit 14. Included in these documents was an application for a hire-purchase agreement, the relevant invoice, and the hire purchase agreement.

26. [26]
    With respect to Transaction No.2, the application, the relevant invoice, and the hire purchase agreement were tendered as Exhibit 15. This was in similar terms to Transaction No.1.

27. [27]
    With respect to Transaction No.3, the application, the invoice, and the hire-purchase agreement were tendered as Exhibit 16.

28. [28]
    With respect to Transaction No.4, the application, the invoice, and the hire purchase agreement were tendered as Exhibit 17.

29. [29]
    With respect to Transaction No.5, the application, the invoice, and the hire purchase agreement were tendered as Exhibit 18.

30. [30]
    With respect to Transaction No.6, the application, the invoice, and the hire purchase agreement were tendered as Exhibit 19.

31. [31]
    I note with respect to each of the transactions that the approval was prior to the invoice being delivered:

1. (a)
   Transaction 1 – approval date 5 August 2009^[57]

2. (b)
   Transaction 2 – approval date 2 February 2011^[58]

3. (c)
   Transaction 3 – approval date 9 June 2011^[59]

4. (d)
   Transaction 4 – approval date 28 June 2011^[60]

5. (e)
   Transaction 5 – approval date 26 October 2011^[61]

6. (f)
   Transaction 6 – approval date 14 March 2012^[62]

32. [32]
    I also note with respect to each of the approvals they were not subject to any valuation.

33. [33]
    It seems clear to me that the valuation of the goods did not achieve any importance in the process.

34. [34]
    Mr Chinnery gave evidence that with respect to higher purchase agreements an applicant had to provide some background as to what their business did and financial statements so they could then determine whether the client could afford to repay the loan. There was also a normal privacy act agreement.^[63]The application would normally be on the finance broker’s letterhead or a BOQ Equipment Finance Limited application document.

35. [35]
    According to Mr Chinnery’s evidence there was no inspection of the goods under a high-purchase arrangement unless they were worth over 1.5 million dollars.^[64]The supplier would be validated. The tax invoice had to be made out to BOQ Equipment Finance Limited so title could pass from the supplier to BOQ Equipment Finance Limited.^[65]Mr Chinnery also said that the value specified on the applications was accepted at face value.^[66]It was really the existence of the goods which was important.^[67]As far as the bank was concerned they were lending the amount of money to Dr Hitzke that he had asked to borrow.^[68]He could choose to spend the money on whatever he wished to.^[69]

36. [36]
    Turning to Transaction No.1, the witness agreed that the first document which came in was the application form from Dr Hitzke applying to borrow $167,000.^[70]The lending officer complied with the bank’s internal policies by obtaining relevant documents but these documents did not include any invoice from the supplier in order to approve the loan.^[71]Nadia approved Transaction No.1 on 5 August 2009^[72]and the invoice was not received until 12 August 2009.

37. [37]
    He agreed that no one from the bank relied on the invoice when they approved the loan.^[73]He agreed that no one turned their mind to whether or not the price paid for the goods was a reasonable price, a fair price, or one which reflected market value.^[74]The validation of the supplier was done in a settlement area.^[75]The settlement officer was merely there to make sure the conditions of the loan were satisfied namely when they got the invoice to check it was from the right supplier, that the goods were being sold to BOQ Equipment Finance Limited, the description of the goods was the same as the application, and the amount of the invoice was the same as the amount already approved.^[76]There was no attempt to form a view as to whether that amount was fair and reasonable or appropriate.^[77]

38. [38]
    Indeed with respect to Transaction No.2 there were no ticks next to the amounts specified half way down the page.^[78]

39. [39]
    There was no suggestion that the settlement process for the other transactions were any different.

Ray Delaney

40. [40]
    Ray Delaney, a finance broker, gave evidence that he was involved with a number of the transactions. He referred to a number of the relevant documents in Exhibit 21.

41. [41]
    In cross-examination he agreed he would not refer a “dodgy” transaction to the Bank of Queensland.^[79]In his dealings with Dr Hitzke between 1998 and 2014 he never had any concerns as to his financial honesty.^[80]In 2014 Dr Hitzke was suffering from cancer and asked if Mr Delaney could assist with a moratorium on payments.^[81]

42. [42]
    With respect to Transaction No.1 he agreed that the Bank of Queensland did not require an invoice until the approval was in place.^[82]He did not recall that the Bank of Queensland required any other evidence of value.^[83]In his experience as a finance broker it was uncommon for the bank to require a valuation of any asset only if it was used.^[84]He agreed that a chiropractic table or other item of medical equipment would on a quick sale basis be a fraction of what it would normally cost (similar in that sense to computer equipment).^[85]

Mike Smith

43. [43]
    Mike Smith, another broker, gave evidence with respect to Transaction No.2. He explained the relevant document concerning that transaction. He also said the bank traditionally required an invoice because they were fairly specific and particular about what supplier provided the assets.^[86]

44. [44]
    In cross-examination Mr Smith agreed that it was obvious that the Bank of Queensland did not have the invoice at the time the transaction was approved.^[87]It was quite normal for the approval to be given before the goods were ordered.^[88]The only relevant considerations from the banks perspective were that the invoice was made out to the Bank of Queensland, that there was a description of the goods, and that the amount would have to tally with the approval.^[89]The witness also told the court he had a number of dealings with the accused over the years and found him to be a good client with a great history.^[90]

45. [45]
    He said that after this transaction the defendant had health issues and had to defer payments on his accounts.^[91]

Neil Skeldon

46. [46]
    Neil Skeldon, a project manager from Grays Online, gave evidence that in July 2014 he was asked to go and identify a number of chiropractic tables. He met the defendant at Northlakes and observed chiropractic tables there and then a number of chiropractic tables in boxes at the Caboolture Airport. Photographs were tendered. He found Dr Hitzke co-operative and helpful.^[92]The tables in the boxes appeared to be unused and were real tables.^[93]

Nadia Skliros

47. [47]
    Nadia Skliros gave evidence as to Transaction No.1. She said with respect to the approval^[94]that once the credit analyst had approved the application based on the financial information, the approval advice would be printed out for the broker to confirm they had approved funds for the asset.^[95]She would have assessed the application as lending officer. At the time she didn’t have approval authority but would have collated all of the information and recommended or not recommended the approval.^[96]She would have received the customer’s personal assets and liabilities statement, accountant’s prepared financials, confirmation of any current commitments and any tax invoices for the asset.^[97]Based on the assets and liabilities and the financials for this customer there was enough funding to cover the finance and they were fit for approval.^[98] She agreed that the invoice was provided after the approval.^[99]The approval is the final stage of the application process.^[100]Once the approval had been granted the settlement would go through but settlement would not be able to take place without a tax invoice because they needed to confirm the details of the supplier and perform their due diligence.^[101]The due diligence involved checking whether it was a genuine supplier.

48. [48]
    In cross-examination the witness agreed the settlement department was more about ensuring that all of the “I’s were dotted and the T’s crossed” and the signatures were in the right places.^[102]The condition of the approval was to have a tax invoice which had goods which were readily identifiable with all serial numbers itemised and paid out to BOQ Equipment Finance Limited.^[103]The only issue with the amount was whether it corresponded with the existing approval.^[104]For the approval she had in front of her the application, the personal statement of assets and liabilities, the privacy consent, the profit and loss statement and balance sheet.^[105]By the time it got to the settlement department all decisions had been made.^[106]She could not say whether with respect to this transaction they enquired as to whether it was a reasonable price for the goods.^[107]

Penelope Postle

49. [49]
    Ms Penelope Postle gave evidence that she was involved in the settlements team at BOQ Equipment Finance Limited^[108]. Her duties involved checking on the relevant documents after the loan had already been approved^[109]. Her role was to follow up missing documents and ensure that the cheque or transfer was to be processed. She was involved in Transaction 1 and in fact signed the relevant document.^[110]She had no role in the approval or settlement process^[111].

50. [50]
    In cross-examination she agreed she had no role in the approval process. That was all handled by the credit team^[112]. By the time she became involved the facility was already approved. Her role was to check documents that the signatures were correctly executed and insurance was in place. It was not part of her role to check that the figures were reasonable, rather only to check that the figures matched the approval^[113].

51. [51]
    I note that this witness did refer to the Red Book when it came to the valuation of a car^[114], but this did not relate to any of the transactions before this court.

Erin Ridsdale

52. [52]
    Erin Ridsdale gave evidence that she also worked with BOQ Equipment Finance Limited. She was a settlements officer and then became a supervisor^[115]. With respect to settlements, that involved checking the documents to ensure they were in accordance with policy and procedures^[116]. Once this was done the money would be paid. She would check that the invoice was made out correctly, that there was an ABN, that GST was noted, that it was dated, that there was a description of the equipment, and that the invoice added up^[117]. The approvals were left to the credit team^[118]. For a hire-purchase agreement the invoice was to be made out to BOQ Equipment Finance Limited because the bank would receive title^[119]. Once she received the documents, the documents were checked by her as settlements officer and then it would settle. Page 147 of Exhibit 21 was an example of a settlement check list^[120]. I note there is nothing about value or valuations contained in that document. She was specifically involved in Transaction No.5.^[121]Once the matter settled the moneys were paid out electronically and there was an EFT advice. The invoice was important in the settlement process as they needed to check it; they needed the payee and the bank details.^[122]

53. [53]
    In cross-examination she accepted that she was involved with Transaction No.5^[123]. She confirmed that the approval had already been given by the credit department and for Transaction No.5 the approval was in Exhibit 21 at page 247^[124]. When she was checking for the settlement she had to ensure that there was an invoice. She also had to ensure that she had a signed assets and liabilities statement, and evidence of insurance^[125]. No evidence of value was required for the decision by the credit department^[126]. The credit department had to be satisfied the borrower had the capacity to pay. It was not part of her function to consider whether the amount paid was sound or prudent^[127]. Price was not something she turned her mind to, she was only concerned that the figures added up^[128].

Peter Robertson

54. [54]
    Peter Robertson gave evidence that he worked in the credit department^[129]. When he assessed a deal he was considering the totality of the documents, character, capacity to pay, collateral, and risk^[130]. In the usual course he would receive the application from the broker, he would then check the financials (that is, the profit and loss statement and asset and liabilities statement) and determine whether there was capacity to repay^[131]. With respect to chiropractic tables he considered those to be “tertiary asset.”^[132]He considered that once used they had no saleable value^[133]. When he considered the application he was considering potential loss as a risk.^[134]He said that if he knew the goods didn’t exist he would not have approved the loan^[135]. He said that if the real price on the invoice was less than was asked^[136]for he may not have approved the deal.^[137]But he did not unequivocally say that he would not have approved the loan, and in any event, this answer was not said to specifically apply to Transaction No. 2. Indeed, it could not apply because it was approved before the invoice was provided. 

55. [55]
    In cross-examination the witness confirmed that chiropractic tables were a tertiary asset^[138]. He confirmed that central considerations in the assessment of tertiary assets were capacity to pay, character, as well as assets and liabilities^[139]. In this case the applicant seemed strong from an asset and liability perspective.^[140]He had said in evidence in chief that he would check the invoice to ensure there was an arm’s length relationship between the purchaser and the supplier, but in this case he was confronted with the approval having been approved for Transaction No.2 on 2 February 2011^[141]and the invoice dated 24 February 2011.^[142]He conceded that he did not have the invoice at the time of the approval^[143].

Scott Bednall

56. [56]
    Scott Bednall, a valuer, gave evidence that BOQ Equipment Finance Limited had asked him in July 2004 to give a valuation of tables examined by Mr Skeldon^[144]. For the purpose of this valuation he looked at the photographs^[145]and the relevant copies of the invoices. He conducted market research, looked at suppliers’ values and then determined a fair market and an auction value for the items^[146]. Because he had limited information and photographs he thought it would be $8,600 for the most expensive table^[147]. The range of price would be $1,500 to $8,600. The average was about $4,000 each and auction was $1,000 each^[148]. The valuation as at 2009-2012 would not vary from the time he gave his valuation^[149].

57. [57]
    In cross-examination he agreed that retail value was different to market value. He gave evidence that Mr Christie declined to assist him. He also agreed that if there was a service fee that would increase value. He was not tasked to consider whether the amounts in the invoices was an appropriate amount^[150]at the time of purchase.

Justin Baldwin

58. [58]
    Justin Baldwin gave evidence that his company Just Imaging had taken over Mr Christie’s business. He knew the defendant as he had installed x-ray equipment at his practice at Woody Point.^[151]He saw there were four chiropractic tables at Woody Point.^[152]When he took over the business from Mr Christie he engaged in communication with Hill Laboratories Company in the USA, the company which supplied the tables.^[153]He did not sell any tables to Dr Hitkze.^[154]The price of a table varied between $10,000 and $16,000. The cost of the freight was somewhere between $1,500 to $2,000.^[155]

59. [59]
    In cross-examination he agreed that he met Mr Christie at Dr Hitkze’s clinic towards the end of 2012.^[156]He agreed that he told the prosecutor in a conference that a table could sell for up to $25,000.^[157]

Benjamin Weare

60. [60]
    The police officer gave evidence of his investigation and gave evidence as to the various bank statements of Jestrose Pty Ltd. Officer Weare confirmed that he had taken at least one statement from Mr Christie^[158].

61. [61]
    In cross-examination he conceded that Mr Christie had pleaded guilty and a “deal” was done for him to give evidence^[159]. He accepted that Dr Hitzke’s case had come on for trial, however the trial had to be aborted because further evidence needed to be obtained from staff at BOQ Equipment Finance Limited to prove reliance upon the alleged representations^[160]. Since that trial, statements have been taken from BOQ employees. The witness agreed that with BOQ Equipment Finance Limited his investigations revealed that there was an approval stage and a settlement stage^[161]. He agreed that most of the witnesses could not confirm that they had seen the relevant invoice^[162]. No one could say that they had seen the relevant invoice at the credit stage of the process. No one was categorical about it. It was also hard to say where in the process the invoice was provided^[163].

62. [62]
    The officer was taken through the six transactions and confirmed that the invoice was after each of the approvals. Once the approval had been given the matter was handed to the settlement department. He could not recall whether any witness from the credit section said they had checked the invoice^[164].

63. [63]
    He could not recall whether any evidence of any of the six invoices was included with the application for hire-purchase.^[165]

64. [64]
    With respect to Transaction No.1, he agreed that the invoice was not attached to the credit application.^[166]He was not aware as to whether the finance broker had the invoice. He was then taken through the bank statements of Mr and Mrs Christie and conceded that a number of large transactions had occurred where moneys were paid in and then paid out. Some of those though related to Dr Hitzke.^[167]

65. [65]
    With respect to the allegation the tables did not exist when an invoice was made out, he did not suggest he had evidence to prove this^[168]. He did not check all of the boxes when he went to Caboolture^[169].

66. [66]
    In re-examination it was agreed that an admitted fact would be made by the parties that a number of the transactions in Mr Christie’s account related to the defendant. I have already discussed those above.

Emery Bridge

67. [67]
    This witness gave evidence that he was a Credit Manager from BOQ. He gave evidence that after the defendant had bowel cancer the defendant’s wife requested a three month moratorium on the payment of the debts. She completed a hardship application.^[170]This was granted for three months because of the defendant’s illness and his good conduct.^[171]Despite a request for an extension with partial payments, this was not granted.^[172]

Defence submissions

68. [68]
    The defence submits in this matter that it cannot be proved as particularised that the invoices provided to BOQ Equipment Finance Limited for each of the transactions were false. The submission is that the price set out in the invoice was an agreed price between the BOQ Equipment Finance Limited and Christie’s business and that was the bargain entered into between them. It was submitted that there was nothing unlawful about this. It was submitted that it was not a representation but merely an agreement between the complainant company and Christie’s business. In those circumstances it was submitted that it could not be proved that the invoice was false.

69. [69]
    It was further submitted that many of the particulars could not be made out.

70. [70]
    It was further submitted that it could not be proved there was any false inducement proved in this case on the totality of the evidence.

71. [71]
    The defence also submitted that any application to amend the particulars should not be granted.

72. [72]
    It submits there is prejudice associated with an amendment at this late stage. It also submits that even if there was an amendment, key aspects of the amended particulars have not been established.

73. [73]
    As to the Crown written submissions, the defence points out:

1. (a)
   The allegation that the tables were never ordered “as specified in each invoice” (para 5) is different to the particular that the goods were never ordered.

2. (b)
   Paras 7 and 14 create a new case and were never part of the particulars.

3. (c)
   Inference cannot be relied on because there is direct evidence from the employees at BOQ, unlike in some of the authorities relied on by the Crown.

Crown submissions

74. [74]
    The Crown submits that in this case the Crown is entitled to rely on both direct evidence of employees and an inferential case based on the circumstances to show that the complainant provided the funds because it was deceived by the applicant’s false representations contained in his finance application.

75. [75]
    The Crown further submits that the invoice should be regarded as part of the overall approval process even if it was not with the original application.

76. [76]
    In written submissions the Crown submits:^[173]

1. (a)
   The dishonesty can be inferred by the inflated amount of the price on each invoice.

2. (b)
   That it was implicit that in validating the supplier it was an arm’s length transaction^[174].

3. (c)
   Reliance on the invoice formed part of the approval process.

4. (d)
   Mr Christie was not a legitimate, validated supplier^[175].

5. (e)
   If the invoice had not been provided the transaction would not have been completed.

6. (f)
   The approval was conditional on receiving the invoice.

7. (g)
   Mr Christie gave some evidence tables were not delivered.^[176]

8. (h)
   The evidence was to the effect that value was important.

77. [77]
    The Crown further submitted that it should be allowed to amend its particulars to correct them in light of the evidence and the defence submissions.

78. [78]
    The proposed amended particulars have been marked as Exhibit V for identification.

Discussion

Nature of particulars

79. [79]
    It must first be appreciated that the particulars are crucial in this case. As was noted in Kirk v Industrial Court of New South Wales^[177]the function of particulars at common law requires a defendant to be told not only of the legal nature of the offence with which he or she is charged but also of the act, matter or thing alleged as the foundation of the charge. It provides the defendant with the substance of the case he or she is called upon to meet.

80. [80]
    Questions of relevance are to be determined by an examination of the particulars^[178]. As Heydon J noted in Patel v R^[179]the particulars also can be necessary for the defence to make forensic judgments including as to cross examination and as to the marshalling and deployment of the defence evidence.

81. [81]
    As Fryberg J noted in R v Patel (No 2)^[180]the party is confined to the case as particularised. Of course, particulars may be amended on application if there is no prejudice caused to the defence.

82. [82]
    It must also be noted that particulars when ordered^[181]are to be read as part of the indictment.^[182]

83. [83]
    I need to bear in mind the history of this matter. The first indictment was presented in 2016. The present indictment was presented in May 2017. The first particulars were presented in 2017. There were amendments to these in January 2018. The first trial proceeded for two days in January 2018 and was then aborted. In July 2018 an order was made for the provision of particulars. These were provided in September 2018. Debate about these particulars occurred on 8 and 9 October 2018. The Crown delivered the final particulars on 10 October 2018.

84. [84]
    In this matter I bear in mind this trial has gone for some eight days. This is the second time it has come on for trial. The Crown was provided sufficient time to consider its position. It would cause prejudice to the defence if allowed to amend the particulars.

85. [85]
    In particular the new allegation that the defendant did not have the capacity to pay the debt (para 6) would require considerable new cross-examination and quite different preparation by the defence. Indeed one would have thought, quite different and detailed evidence-in-chief.

86. [86]
    The insertion of the word “provision” in paras 5, 19, 26 and 40 creates a different case here than that which was alleged on day 1 of the trial.

87. [87]
    In any event some of the new particulars are not sustainable on the evidence. In other words the proposed amendments do not remedy the apparent defects.

88. [88]
    First, as to paras 1, 8, 15, 22, 29 and 36, an invoice was not included in the application.

89. [89]
    Secondly, as to paras 3, 9, 17, 24, 31 and 38, the invoice was submitted after the application.

90. [90]
    For the reasons given, I refuse the application to amend the particulars.

Discussion

Failure to prove key particulars

91. [91]
    For the reasons set out in the defence submissions, I am satisfied that key particulars have not been proved by the Crown.

92. [92]
    First, it is alleged in paras 1, 7, 13, 19, 25 and 31 that the invoice was to be included in the applications for the hire purchase agreements. This is incorrect. The evidence reveals that each application was lodged before the provision of the invoices.

93. [93]
    Secondly, it is alleged in paragraphs 3, 9, 15, 21, 27 and 33 that the alleged false invoices were included in the applications prepared by the finance brokers and submitted to BOQ Equipment Finance. This is incorrect. The evidence reveals the invoices were not submitted with the applications.

94. [94]
    Second, it is alleged in paragraphs 5, 11, 17, 23, 29 and 35 that the goods in the invoice were never ordered by Christie. This cannot be proved. No one has checked the tables to see whether they match the serial numbers or description in the invoices. Officer Weare did not doubt the defendant that tables were in the boxes.

95. [95]
    Third, it is alleged in paragraphs 6, 12, 18, 24, 30 and 36 that the application was processed on the basis the invoice was true and accurate. This is incorrect as the invoice was provided after the application was processed.

96. [96]
    The case fails because of the above.

97. [97]
    Notwithstanding that finding, it is appropriate to give further consideration to the following other fundamental problems with the Crown case.

Can the particularised false representation be proved?

98. [98]
    This aspect of the case depends upon the nature of the commercial relationship entered into with respect to each transaction. The Crown has not alleged that a false value was in the invoice but rather that there was a false price.

99. [99]
    It is clear in this case the price was agreed upon between BOQ Equipment Finance Limited and Mr Christie. Section 11 of the Sale of Goods Act 1986 (Q) establishes that reasonableness of the price is not relevant. 

100. [100]
     Section 4 of the Sale of Goods Act 1986 (Q) provides:

“4  Sale and agreement to sell

1. (1)
   A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price.

1. (1A)
   There may be a contract of sale between one part owner and another.

2. (2)
   A contract of sale may be absolute or conditional.
3. (3)
   When under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but when the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled the contract is called an agreement to sell.
4. (4)
   An agreement to sell becomes a sale when the time has elapsed or the conditions have been fulfilled subject to which the property in the goods is to be transferred.”

101. [101]
     And s 11 of the Sale of Goods Act 1896 (Q) provides:

“11  Ascertainment of price

1. (1)
   The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.
2. (2)
   When the price is not determined in accordance with subsection (1) the buyer must pay a reasonable price.
3. (3)
   What is a reasonable price is a question of fact dependent on the circumstances of each particular case.”

102. [102]
     In Australian Competition and Consumer Commission v Nationwide News Pty Ltd^[183]Heerey J was concerned with a case where the defendant had displayed advertisements over a five day period offering a free mobile telephone to readers. On all but two of the versions of the advertisements the word “free” was accompanied by the words “conditions apply” or some other reference to conditions. Any person who wished to take up the offer was required to enter into an agreement known as a smart plan in which they would have to pay a connection fee, delivery charge and security deposit. They would also have to pay a fixed sum per month. These conditions were not apparent from the advertisements, but the reader had an opportunity to read the conditions when filling out the application coupon for a phone. The ACCC bought an action against Nationwide claiming these advertisements breached the Trade Practices Act 1974 (Cth) in that they were misleading, false or deceptive.

103. [103]
     Heerey J dismissed the charges against Smartcom and his Honour held at [26]:

“It was not disputed that Nationwide made in trade or commerce in connection with the supply or possible supply of goods and namely the Daily Telegraph Mirror Newspaper a representation with respect to goods namely the mobile phones the subject of the offer. However, in my opinion the representation was not misleading (nor false) in relation to the price of those goods. The word ‘pricing’ in s 53(e) at least in relation to goods is to be understood in its ordinary legal and contractual sense as found in Sale of Goods Legislation on the States and Territories… This may be a technical legal meaning but it is also a meaning well understood in general parlance. Thus the first meaning given by the Macquarie Dictionary for the amount price is the sum or amount of money or its equivalent for which anything is bought sold or offered for sale… at p 83. A person who took up the offer in the promotion would acquire an unencumbered title to a mobile phone and would not pay, or be liable to pay, any amount of money for such acquisition. There was no price which such a person would have to pay for the transfer of the property in the telephone team or herself. Therefore acquisition of title to the telephone was free… There was no suggestion that the transaction to which a subscriber would enter was a sham, either in whole or in part. The monies paid for the various services referred to were in truth payment for those services.”

104. [104]
     The matter was the subject of an appeal,^[184]but on a different point.

105. [105]
     In a similar vein, in Trade Practices Commissioner v Cue Design Pty Ltd & Cue & Co Pty Ltd (1996) 85 A Crim R 500, the defendants were charged with committing 60 breaches of the Trade Practices Act 1974 (Cth). It was alleged that they had made false or misleading representations with respect to the price of goods or services. In that case the defendants displayed an item of women’s fashion apparel (namely a pair of shorts) for sale in the Cue Store at the Myer Centre in Adelaide. A swing tag bearing a representation as to price was attached to the shorts. The tag originally represented the price of the shorts as $52. That amount had been crossed out, and an amount of $39 written in. The representation was that the goods were being offered for sale at the lower price. It was noted at p 503:

“It is not suggested that the higher prices on the swing tags were false prices. They were prices of which the garments would have been offered for sale…”

106. [106]
     In Heritage Clothing Pty Ltd v Men’s Suit Warehouse Pty Ltd,^[185]Heerey J accepted that which was in Cue’s case, and noted at p 49, 824 that:

“The representation does not convey anything as to whether the suits warrant a retail price of $799 or $899 or that such prices bear out the true retail value. Offering goods for sale at a given price, without more, usually does not imply any statement as to the true value. The seller is merely saying ‘if you pay me $X, I will sell you this article’ the position is not different when the seller is offering to sell two articles for a given price. So far as I have considered Peter Jackson’s case as pleaded in the FASC. During the course of the hearing however there was a significant shift. It was said that MSW Dealers Walter Withers Stores never or almost never sells suits for the full marked price of $799 or $899.”

107. [107]
     Turning back to this case, based on the authorities to which I have referred, there was no representation in the relevant invoice that the tables were of a particular value. The only representation was the sale price from Christie to BOQ Equipment Finance Limited.

108. [108]
     The case has not been otherwise particularised. For example, there is no reliance of statements made in the credit applications or documents provided by the defendant to the brokers^[186].

109. [109]
     This is a case where a bargain (it may even be a poor bargain on the part of BOQ Equipment Finance Limited) but a bargain nonetheless was voluntarily entered into by both parties. I note that Mr Chinnery gave evidence that goods were never inspected for hire-purchase agreements.

110. [110]
     Perhaps BOQ Equipment Finance Limited was not overly concerned about entering into the finance arrangement because they were to receive a reasonable amount of interest by way of repayments and the full amount of the debt. In any event it seems common ground that for medical equipment such as this it would not be worth much (if anything) second hand.

111. [111]
     BOQ Equipment Finance Limited was primarily interested in the capacity to repay and the risk of loss.

112. [112]
     It is my opinion then that it cannot be proved there was any false/dishonest representation as particularised by the Crown.

113. [113]
     It would be a different matter if it could be proved definitely that the tables did not exist but that cannot be proved here. No one has gone through all of the boxes to check to see whether they match up to the invoices or not.

114. [114]
     It must also been borne in mind is that the effect of the particulars are such that the goods were not ordered at all.

115. [115]
     In the circumstances I rule there is no case to answer on the charge on this ground.

116. [116]
     I next turn to the issue of inducement.

Can the particularised inducement be proved?

117. [117]
     In order to prove a charge of fraud it is necessary for the Crown to prove that the dishonest act induced the complainant to act on it. Indeed inducement is specifically pleaded in the charge.

118. [118]
     I turn to the tort of deceit by way of analogy.

119. [119]
     In Gould v Vaggelas^[187]it was held that the onus of proving an inducement rests upon the party seeking relief with respect to the fraudulent misrepresentation.

120. [120]
     Wilson J at p 236 noted:

“1.  Notwithstanding that a representation is both false and fraudulent, if the representee does not rely upon it he has no case.

2. If a material representation is made which is calculated to induce the representee to enter into a contract and that person in fact enters into the contract there arises a fair inference of fact that he was induced to do so by the representation.

3. The inference may be rebutted, for example, by showing that the representee, before he entered into the contract, either was possessed of actual knowledge of the true facts and knew them to be true or alternatively made it plain that whether he knew the true facts or not he did not rely on the representation.

4. The representation need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract.”

121. [121]
     It was noted that in Potts v Miller^[188]the circumstances of the case were such as to place a heavy burden on the plaintiff to satisfy a jury that the false statement formed an operative inducement.

122. [122]
     In R v Jenkins^[189]the accused had been convicted of five counts of furnishing false information. He had obtained loans and a guarantee from a friendly society on the basis of valuations of land which was mortgaged to secure the lands in the guarantee. The valuations overstated the value of the land. The manager of the friendly society gave evidence that he used the valuations to determine if the proposed lands complied with the statutory requirements. The friendly society was prohibited by legislation from lending money on the security of a mortgage of land where the ratio of the amount of the loan to the value of the land exceeded a certain percentage. The accused was convicted. No officer of the friendly society gave evidence that he or she was deceived by a valuation report into approving a loan application. The majority held that there was no evidence the valuations were required by the friendly society for an accounting purpose. The evidence suggested they were used solely for the prudential purpose of determining loan-value ratio. There was insufficient evidence to support the convictions. I note that case was specifically concerned with a particular provision relating to “accounting purposes” on the Victorian legislation.

123. [123]
     The court, however, unanimously agreed that there was sufficient evidence that the financial advantages were gained by deception. Giles JA at [79] noted:

“Ordinarily, the fact that the deception operated on the mind of the person deceived should be proved by direct evidence. R v Laverty^[190]But there is ample authority that proof need not in every case be afforded by the direct evidence of a witness to this effect, if the facts are such that the alleged false pretence is the only reason which could be suggested as having been the operative inducement.”

124. [124]
     O'Bryan AJA at [143] noted it was a regrettable omission that Mr Faithful was not asked whether he believed the contents of the valuation reports. The jury was entitled to find he had the requisite status and authority in relation to the loan applications to be deceived by them.

125. [125]
     The difference, however, with Jenkins is that the facts in this case are not such that the alleged false pretence is the only reason which could be suggested as having the operative inducement.

126. [126]
     There is also direct evidence as to the reason for the transactions inconsistent with the Crown particulars.

127. [127]
     In Theophilus v Police^[191], Peek J was concerned with a case where the appellant was convicted of four counts of deception. The case against him was that the appellant, a service manager for North-East Mitsubishi (“NEM”), had considerable purchasing authority. He arranged for NEM’s suppliers to bill NEM for goods and services supposedly for the benefit of NEM but he retained the benefit for himself. A purchase order would be raised and the supplier was given this. The case was the appellant intended to and did deceive NEM into paying the suppliers’ invoices. He was convicted by a Magistrate.

128. [128]
     One of the grounds of appeal was that the Magistrate failed to consider whether there was a causal link between the misrepresentation and the benefit derived. The accounts clerk at NEM was not called to give evidence.

129. [129]
     Peek J first referred to R v Laverty^[192], where the defendant was acquitted because the complainant failed to give evidence that the alleged misrepresentation induced him to purchase the car. The car did not bear its original number plate. He said he bought the car because he thought the appellant had title to sell.

130. [130]
     I consider Laverty to be much closer factually to the present case than the other cases relied on by the Crown bearing in mind the complainant gave direct evidence as to his state of mind.

131. [131]
     Peek J then referred to the Western Australian case of Shik Aun Low v R^[193]. In that case, a doctor was charged with making false representations to Medicare that he had rendered professional services. At trial the Crown did not call the evidence from Medicare. It was held by the Western Australian Court of Appeal it was not necessary because unlike in Laverty the accounts could be taken to be false, and indeed false to the applicant’s knowledge. In that circumstance the jury could draw the inference the false accounts caused payment to be made. Peek J then referred to R v Jenkins.^[194]Ultimately at paragraph [30] Peek J held that the circumstances of the case were such that the accounts were paid because a false invoice was presented as a result of actions initiated by the appellant and for no other reason.

132. [132]
     I consider the present case may be distinguished. In that case there was a clear false statement made in the document. In the present case there is nothing false about the invoice. The invoice refers to a sale price. There is no representation of value or of the cost paid by the supplier for the item.

133. [133]
     Also this is a case where there was direct evidence contrary to the Crown allegation.

134. [134]
     In this case it is my respectful opinion that the prosecution cannot prove its case that there was an inducement on the basis of the particulars.

135. [135]
     For the reasons which follow it is my view that all of the documentation and the nature of these transactions were such that the value of the goods was not relevant. What was relevant was the capacity of the borrower to pay, that is his asset and liability position.

136. [136]
     The Crown case is particularised that the purported false invoice induced BOQ Equipment Finance Limited to approve the loan or alternatively it is to be inferred that the funds were advanced because of it.

137. [137]
     On the totality of the evidence the value of the goods was not relevant^[195]. On the evidence the approval was prior to the provision of the invoices with respect to each transaction. Any conditions on the approval did not relate to the value of the goods in the invoice.

138. [138]
     This particular fails.

139. [139]
     The next question is whether the Crown can prove that the funds were advanced by reason of the purported false invoice. I do not consider this can be shown.

140. [140]
     BOQ Equipment Finance Limited was not concerned as to the reasonableness of the price. All the bank was really concerned about was the financials of the borrower and whether there was a capacity to repay. The approvals were not the subject of any valuation or inspection. The invoice was required for the sole purpose of ensuring that the serial numbers could be checked, the supplier vetted, and the amount would match with the amount sought in the application. The value or price of the goods was not a relevant consideration to the advance. The settlement was not subject to satisfactory value. In the circumstances, based on the totality of the evidence, the particularised case by the Crown cannot be proved.

141. [141]
     With respect to Transaction No.1, Ms Skliros clearly in her evidence established that the amount in the invoice or the reasonableness thereof was not relevant or could not be proved to be relevant to the advance of the sum the subject of Transaction No.1.

142. [142]
     Furthermore, with respect to Transaction No.1, it is clear on the evidence that the approval for the loan was given on 5 August 2009.^[196]The approval was not subject to any valuation or inspection. The invoice was provided after the approval on 12 August 2009.^[197]

143. [143]
     With respect to Transaction No.2, Mr Robertson in his evidence did not clearly establish that the amount in the invoice or the reasonableness of it was relevant to the approval. He was primarily concerned about the capacity of repayment and risk. Further, with respect to Transaction No.2, the approval was on 2 February 2011 not subject to any valuation or inspection^[198]. The invoice was not provided until 24 February 2011^[199]. There is no suggestion on the face of the invoice that the amounts were checked to see whether they were reasonable or not.

144. [144]
     The settlement list document^[200]was only concerned with GST being “accurately reflected on the quote”. BOQ Equipment Finance Limited were not concerned with proof of title if the application was involved a recognised supplier.

145. [145]
     With respect to Transaction No.3, again the approval was given by David Miles on 9 June 2011.^[201]Mr Miles did not give evidence. The approval was not the subject to any valuation or inspection. The invoice is dated 13 June 2011 - after the approval^[202].

146. [146]
     The settlement list document^[203]was only concerned with GST being “accurately reflected on the quote.” BOQ Equipment Finance Limited were not concerned with proof of title if the application was involved a recognised supplier.

147. [147]
     With respect to Transaction No.4, the approval was dated 28 June 2011.^[204]Ivan Brnadic signed the approval. Mr Brnadic did not give evidence. It was not the subject of any valuation or inspection. The invoice for Transaction No.4 was dated 30 June 2011^[205]– after the approval.

148. [148]
     The settlement list document^[206]was only concerned with GST being “accurately reflected on the quote.” BOQ Equipment Finance Limited were not concerned with proof of title if the application was involved a recognised supplier.

149. [149]
     With respect to Transaction No.5, the approval was dated 26 October 2011.^[207]Ivan Brnadic signed the approval. The approval was not subject to any valuation or inspection. The invoice was dated 1 November 2011 - after the approval.^[208]

150. [150]
     The settlement list document^[209]was only concerned with GST being “accurately reflected on the quote.” BOQ Equipment Finance Limited were not concerned with proof of title if the application was involved a recognised supplier.

151. [151]
     With respect to Transaction No.6, the approval was by Ivan Brnadic dated 14 March 2012.^[210]It was not the subject of any valuation or inspection. The invoice was dated 15 March 2012^[211]- after the approval.

152. [152]
     The settlement list document^[212]was only concerned with GST being “accurately reflected on the quote.” BOQ Equipment Finance Limited were not concerned with proof of title if the application was involved a recognised supplier.

Conclusion

153. [153]
     For the reasons given I refuse the Crown application to amend the particulars and I rule there is no case to answer.