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CITE

Unreported Judgment

Rodgers v Australia and New Zealand Banking Group Limited[2009] QSC 86McMeekin J
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Rodgers v Australia and New Zealand Banking Group Limited[2009] QSC 86

SUPREME COURT OF QUEENSLAND

CITATION:	Rodgers and Anor v Australia and New Zealand Banking Group Limited [2009] QSC 86
PARTIES:	STEVEN ALEXANDER RODGERS AND ROSLYN RODGERS Plaintiffs v AUSTRALIA AND NEW ZEALAND BANKING GROUP (ABN 11 005 357 522) Defendant
FILE NO/S:	Rockhampton Registry BS111/06
DIVISION:	Trial Division
PROCEEDING:	Hearing
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	7 May 2009
DELIVERED AT:	Rockhampton
HEARING DATE:	3, 4, 5, 6 and 11 February 2009
JUDGE:	McMeekin J
ORDER:	The proceedings are dismissed. The plaintiffs pay the defendant’s costs of the proceedings
CATCHWORDS:	TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – Special Relationships and Duties – Banks BANKING AND FINANCE – BANKS – LIABILITIES OF BANKS – FRAUD, UNDUE INFLUENCE AND UNCONSCIONABLE CONDUCT – whether special disadvantage – whether unconscientious use of superior position CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – whether representations made without reasonable grounds Australian Securities and Investments Commission Act 2001 (Cth) ; s 12CA; s 12DA; s 12GF(2); s 12GM(5) Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 San Sebastian Pty Ltd v The Minister (1986) 162 CLR 340 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Blair v Curran (1939) 62 CLR 464 Mitchell v Pacific Dawn Pty Ltd [2007] QCA 74 Rodgers v ANZ Banking Group [2006] QSC 190 ANZ Banking Group Ltd v Rodgers and Anor [2004] QCA 186 Rodgers Family Investments Pty Ltd v ANZ Banking Group Ltd & Ors [2003] QCA 216 Rodgers Family Investments Pty Ltd v ANZ Bank and Anor [2002] QSC 282 Potts v Westpac Banking Corporation [1993] Qd R 135 Winterton Construction Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97
COUNSEL:	Self-represented K Downes SC with J Payne for the defendant
SOLICITORS:	Self-represented Minter Ellison

The plaintiffs are Steven Alexander Rodgers and his wife Roslyn Rodgers. They claim to be entitled to damages against the defendant, the Australia and New Zealand Banking Group Limited (“ANZ”) as a consequence of the ANZ exercising its rights under certain mortgage securities. They appear self represented.

The Contentions of the Parties

In essence Mr and Mrs Rodgers contend:

that certain representations, later detailed, were made to them by an officer of the ANZ, one Cameron Blair;

that as a result of those representations they caused a company they controlled, Rodgers Family Investments Pty Ltd (“RFI”), to take out loans with the ANZ, which loans were secured by mortgages, guarantees and a mortgage debenture they executed in favour of ANZ;

that but for those representations the Rodgers would have continued to maintain the lending facilities which they had in place with the National Australia Bank (“NAB”);

that the effect of the representations made to them by Mr Blair led them to believe that the ANZ would not rely upon its legal rights should the loan covenants be breached but rather that the Rodgers and their related entities would have a “flexible financial accommodation of a further $30,000.00” over and above the amounts mentioned in the loan covenants;^[1]

in the circumstances, it was unconscionable of the ANZ to rely upon and enforce its legal rights;

in the alternative the ANZ owed a duty of care to the Rodgers and that that duty was breached by the giving of negligent advice by Mr Blair to Mr and Mrs Rodgers;

in the further alternative, in both gaining and exercising the legal rights under the mortgages granted to it, the ANZ was guilty of unconscionable conduct within the meaning of s 12CA of the Australian Securities and Investments Commission Act 2001 (“the ASIC Act”) or alternatively guilty of misleading and deceptive conduct within s 12DA of that Act;

the exercise of the power of sale under the mortgages in respect of the two properties owned by Mr and Mrs Rodgers caused them the loss of the value of those properties.

The ANZ defends the claim on the following grounds:

the claimed representations were not made;

the lending arrangements between the plaintiffs and their related entities and the ANZ were accurately and completely recorded in writing in documents executed by the plaintiffs;

those written lending arrangements are inconsistent with the claimed representations;

RFI was substantially in breach of its loan covenants;

there was no unconscionability in the ANZ relying upon its legal rights in withdrawing its financial support from the plaintiffs and their related entities and enforcing their securities;

it owed no duty of care to the plaintiffs nor, if any duty was owed, did it breach any such duty;

no cause of action is available to the plaintiffs under the ASIC Act but in any case if there was any contravention of the provisions of that Act then aspects of the claims made would be statute barred by sections 12GF(2) and 12GM(5) of that Act;

further the business failure of the entities conducted by Mr and Mrs Rodgers was inevitable, that the NAB had obtained mortgages over the same real properties, and hence the plaintiffs would have suffered the same loss and damage in any event had they not caused RFI to take out loans with the ANZ.

Background

RFI is a private company. Mr and Mrs Rodgers are the only shareholders of the company and Mrs Rodgers a director of it, and the sole director by 5 October 2001. Mr Rodgers was employed by RFI in a technical capacity. Mrs Rodgers was employed in an administrative capacity.

RFI conducted two businesses. One involved the sales and service of computers and related products and traded under the name of Baroona Computer Centre. The other was an internet service provider trading under the name of Rocknet.

In addition to her interest in RFI, Mrs Rodgers was a major shareholder in a company called Wodda Team Pty Limited which in turn held 86% of the shares in a company Wodda.com Limited (“Wodda”). At all times material to this proceeding, Wodda was an unlisted public company and in its developmental stage. It is described as an “internet portal”. It was to operate as an on-line portal for regional information and as an online shopping centre. Mrs Rodgers was the Managing Director of Wodda.

Wodda relied upon Rocknet for the use of Rocknet’s equipment and access to the expertise of Rocknet’s employees.

For many years prior to October 2001, Mr and Mrs Rodgers and their related entities were customers of the NAB. Substantial lending facilities had been made available by the NAB to RFI. The various loans were secured and those securities included mortgages over real property the subsequent loss of which is the subject of the damages claim in this action.

RFI had, prior to October 2001, from time to time exceeded its approved lending limits with the NAB. Mrs Rodgers accepted that RFI had had difficulty paying its debts on time from at least 1999. Cheques were dishonoured by the NAB, cheques were written by her but not sent to creditors, and she paid some RFI creditors with her personal credit card.^[2] By May 2001 the accounts had been out of order for over 18 months.^[3]

As a result, from May 2001 the management of the RFI file had been removed from the local NAB branch in Rockhampton and was being handled by a Mr Kirk, a member of the Asset Structuring Unit, a department of the NAB in Brisbane responsible for troubled or delinquent lending. The NAB had refused to allow excesses on any of its accounts, at least without prior express approval from the management in Brisbane.^[4] As well, RFI had incurred significant fees and charges, known as reference fees, whenever it had gone over its lending limits – up to $3000 per month.

Mrs Rodgers contends that RFI was a reasonably profitable company and that its difficulties in staying within its approved lending limits came about by reason of the financial support that RFI provided to Wodda.

For present purposes it is sufficient to note that the NAB was not prepared to support Wodda. The NAB had expressly directed RFI not to divert its funds to Wodda and had obtained an undertaking from the Rodgers to the effect that they would not do so.^[5] The NAB had refused to extend lending facilities to Wodda.

In her evidence Mrs Rodgers conceded that as at August 2001 there was a possibility that the NAB would sever its connection with RFI.^[6] Mrs Rodgers first contact with the ANZ’s manager, Mr Blair, occurred in August 2001.

It is against that background that Mr and Mrs Rodgers caused RFI to transfer its loan accounts from the NAB to the ANZ. Letters of Offer dated 26 September 2001 directed to the ANZ were executed by the Rodgers on 5 October 2001. Settlement with the NAB occurred on 16 October 2001. The loan facilities put in place were for a total of $419,000.00 – Mrs Rodgers contends only $1,000.00 more (after allowing for fees incurred on the transfer) than the arrangements with the NAB.^[7] Trading accounts were continued at the NAB.^[8]

It is common ground that RFI exceeded the limits set out in the ANZ loan documentation executed by Mrs Rodgers. As a result in February 2002 RFI’s file was transferred to the “Portfolio Management Group” - a department of the ANZ which dealt with accounts where there had been a deterioration in the conduct of the account.

The ANZ, under the hand of Mr Peter Oakes, a manager in the Portfolio Management Group, wrote a letter to Mrs Rodgers on 21 February 2002 in which he required provision of certain further information and pointed out, amongst other things, that the following accounts were “out of order” and required attention:

No. of Account	State of Account
1983-52959	Overdrawn $2,049.00
4998-34505	Overdrawn $44,534.00 against a limit of $25,000.00
5383-52569	Overdrawn $1,131.00
3439-76662	Arrears $6,558.14
3439-76689	Arrears $5,247.00
3439-76697	Arrears $1,575.40

The financial information sought by the ANZ was not subsequently provided.

On 19 March 2002, Mrs Rodgers sought approval to pay two Telstra accounts totalling $19,343.00 being services fees for one month. She expressed the concern that if the accounts were not paid the Telstra facility would be cancelled, with devastating consequences for her business, given that RFI already had in place a payment arrangement with Telstra for past debts.^[9]

On 19 April 2002 Mr Rodgers provided some financial information to Mr Oakes under cover of a facsimile letter.^[10] The information provided was limited.^[11] Significantly, the Rodgers were unable to produce the final accounts for the year ended 30 June 2001.

On 24 April 2002 Mr Oakes recorded in a diary note that “no ANZ loan payments have been made for the last three months and there are limited prospects of the position improving in the short term.”^[12]

On 2 May 2002 the ANZ, under the hand of Mr Phil Ashe, a manager in the Portfolio Management Section of the bank, advised RFI in correspondence labelled “Without Prejudice” that “the facilities are in default and the Bank’s security documents have been forwarded to our solicitors for advice regarding enforcement. You may shortly receive notices from the Bank’s solicitors including Notice of Demand and Notice of Exercise of Power of Sale and Notices to Vacate.” The letter went on to seek further information and any proposal the Rodgers might have for the clearance of the debts by refinance or other means.^[13]

Pursuant to its rights under a Mortgage Debenture numbered 847602 dated 22 January 2002 the ANZ appointed investigative accountants on or about 10 May 2002. Prior to that date, the ANZ contends that it had, by Mr Ashe, advised Mr Rodgers of their intention to do so^[14] and had their solicitors, Minter Ellison, post Notices of Demand to RFI.^[15] The Rodgers contend that they received Notices of Demand on the 11^th and 12^th June 2001.

On 24 May 2002 the appointed accountants (David Clout and John Park) provided a report which concluded that RFI was insolvent.^[16]

Amongst their conclusions the accountants advised:

RFI had no cash reserves to enable it to satisfy the arrears on the various bank loans or the overdrawn portion of the overdraft account;

Cash flow projections prepared and produced to the accountants made no provision for repayment of these arrears;

It was unlikely that a realisation of the company’s assets would provide sufficient funds to satisfy the indebtedness to the Bank;

No taxation returns or formal financial accounts had been prepared for the company since the financial year ending 30 June 2000;

Due to its financial difficulties the company had entered into a variety of informal repayment arrangements with its creditors;

The company was indebted to the Australian Taxation Office for amounts totalling in excess of $50,000.00 with there being no arrangement in place for the repayment of this debt;

In the course of the current financial year the company had failed to remit or make allowance for staff compulsory superannuation amounting to $10,552.37;

The cash flow projections supplied suggested that there would be an ongoing erosion of the cash position over the next six months.

The plaintiffs contest the finding that RFI was at that time insolvent and unable to pay its debts as and when they fell due.

By deed dated 19 June 2002 the investigative accountants were appointed as receivers and managers of RFI.

On 14 October 2002 the ANZ, exercising power of sale under its mortgage, sold one of the properties (“the Bondoola land”) and received $48,130.97 on account of the net proceeds from that sale which monies were applied to reduce the amounts owing in relation to the accounts held by RFI.

On 25 February 2004 the ANZ sold the remaining property (“the Walter Reid unit”) and received $146,000.00 gross proceeds. The monies were applied in reduction of a liability that Mr and Mrs Rodgers had incurred pursuant to a judgment of this Court.

The damages that Mr and Mrs Rodgers claim in this action are the present day value of those two items of real property sold by the ANZ.

History of Litigation

This is not the first proceeding between the parties.

Each party contends that the other is estopped from litigating certain issues. The defendant also seeks to argue that evidence given and submissions made in earlier proceedings are at odds with the case the plaintiffs now wish to present. To understand those arguments it will be necessary to relate some of the history of the matter.

On 16 August 2002 White J dismissed an originating application brought by RFI against ANZ seeking to injunct the sale of certain property of RFI by ANZ.^[17] RFI appealed that decision which appeal was dismissed on 30 May 2003.^[18]

Meanwhile on 21 August 2002 the ANZ commenced proceedings against Mr and Mrs Rodgers.^[19] Those proceedings came on before Muir J (as his Honour then was) on 1 September 2003. A counter-claim was struck out a few days before trial and leave to re-plead given. To preserve the trial dates an undertaking was given by the ANZ that no estoppel under the Anshun principle^[20] would be argued subsequently in any hearing of the counter-claim.

The trial before Muir J proceeded over five days. On 17 September 2003 Muir J handed down judgment in favour of the ANZ. The judgment was against the plaintiffs as guarantors of the indebtedness of RFI to the ANZ. The ANZ, as mortgagee, successfully claimed an order for possession of the plaintiff’s land. Mr and Mrs Rodgers appealed the decision which was dismissed.^[21] The principal issue argued by Mr and Mrs Rodgers was that their signatures on the security documents were forged. Alternatively they argued that representations were made to them, essentially of the kind alleged here, that amounted to a collateral agreement or an estoppel precluding ANZ relying on its securities.

On 24 March 2006 Mr and Mrs Rodgers commenced these proceedings. On 13 June 2006 the ANZ applied before Dutney J to strike out the Claim and Statement of Claim as an abuse of process. The basis of the application was that Mr and Mrs Rodgers sought to re-litigate findings of fact already determined in the proceedings before Muir J. The ANZ was largely unsuccessful in that application. Whilst Dutney J held that Mr and Mrs Rodgers were not permitted to seek by way of this action an outcome inconsistent with the outcome in the proceedings before Muir J, he pointed out that that preclusion applied only to those findings which were critical to Muir J’s decision in the sense discussed by Dixon J in Blair v Curran^[22]. The critical findings, essential in the Blair v Curran sense, he described as being:

“that the security documents were properly executed, the money claimed had been advanced or was otherwise owing in terms of the arrangements between the banker and the customer…. that the ANZ had not bound itself to any collateral agreement precluding reliance on the security documents… [and] that the ANZ was not estopped by any representation, not amounting to a warranty, from reliance on its securities”.^[23]

Muir J rejected the plaintiffs’ evidence and found that no representations were made. Dutney J held that that finding was merely an evidentiary finding in this context. The defendant contends that Dutney J was wrong in that conclusion. The plaintiffs contend that the defendant is estopped from so arguing by Dutney J’s decision.

Essential Matters to Establish

The causes of action in negligence and under the ASIC Act require that the plaintiffs establish each of the following:

That representations were made to them as particularised in the Further Amended Statement of Claim, which I set out below;

That the representations were false or misleading;

That the plaintiffs relied on the representations in causing RFI to transfer its loan facilities from the NAB and in executing security documents in favour of the ANZ;

That as a result of the execution of the security documents the Rodgers have suffered loss – namely the opportunity of benefiting from the capital growth in the value of their properties.

The Representations

It is not in dispute that on 5 October 2001 Mrs Rodgers, in her capacity as a director of RFI, signed three Letters of Offer directed to the ANZ whereby RFI sought loans totalling $419,000.00. Obviously, to be relevant as inducements to transfer the loans the representations must precede the signing of those Letters of Offer and be operative as at the date of execution of the Letters of Offer.

I mention that last point as it is evident that some representations, if made, were not so operative. For example it is pleaded that Mr Blair indicated that an overdraft for Wodda could be provided. The overdraft was not in fact provided but Mr Blair told the Rodgers prior to the transfer that it could not be.^[24] The Rodgers contend that merchant facilities for Wodda were promised. Again they were aware prior to the execution of the Letters of Offer that no such facilities could be provided.^[25]

The pre-contract representations that the plaintiffs plead^[26] were made are as follows:

That the ANZ would provide “flexible financial accommodation of a further $30,000”, over and above the $419,000 reflected in the Letters of Offer, for the purpose of allowing RFI to provide working capital for Wodda;^[27]

Mr Blair gave the Rodgers an “unreasonable expectation about ANZ’s willingness to support them” in various ways including expressing his excitement about the concept of Wodda, informing the Rodgers that they could use RFI “as the mule” to provide working capital to Wodda, arranging for a meeting between ANZ’s E-Commerce Manager Gavin Crawley-Smith and the Rodgers, and approving a $20,000 unsecured advance for RFI on 17 September 2001 before any Letters of Offer were provided to the Rodgers;^[28]

That RFI could provide working capital to Wodda out of the $450,000 which sum Mr Blair had effectively represented that the ANZ would advance;

That the ANZ was prepared “to wait and see the financial progress of Wodda” in the period of six months following on the signing of Letters of Offer as it was agreed that it would take that period for Wodda to be financially independent of RFI;

That Wodda would have to achieve “certain projected targets” so as not to overtax the financial reliance on RFI;

That at the end of that six month period the parties would agree on a “final lending figure” for RFI;

That loan repayments did not “immediately” have to be made pursuant to the Letters of Offer;

That the conditions relating to the registration of the security documents outlined in the Letters of Offer would not immediately apply but would only apply once the final lending figure of RFI was established some six months from the date of lending;^[29]

That no security documents were required to be sent to the ANZ Security Department for registration until the RFI final lending figure was established some six months after the date of lending;^[30]

That lending had been approved by the ANZ when it had not in fact been approved;

That the approval of the lending was within the personal authority of Mr Blair when it was not;
That all necessary internal banking requirements had been complied with for the obtaining of the approval of the lending;^[31]
That the ANZ would not “unreasonably withdraw financial support from RFI, Wodda and the Rodgers”;^[32]
By inference that the loan would not be called up while RFI, Wodda and the Rodgers (or any of them) had the capacity to pay.^[33]

I do not see it necessary to set out the terms of the Letters of Offer.^[34] Needless to say the claimed representations find no place in the letters and in essential aspects are contrary to the terms there expressed.

The pleas set out in paragraph (b) above are not in issue – the facts are essentially conceded. Mr Blair thought that the Wodda concept was a “great idea”^[35] and he did intend that monies lent to RFI could be used to support Wodda, which was done. There was an advance of $20,000 made on an unsecured basis and before the Letters of Offer. There was a meeting with Mr Crawley-Smith. However these matters do not advance the plaintiffs’ case very far. No reasonable person could take those facts and assume that any special facilities would be provided over and above that set out in the formal loan documents, or that securities would not be put in place or enforced.

Nor is the representation in (c) in issue in the sense that the ANZ did not prevent or impede monies being made available to support Wodda. Whether the limit was $450,000 or the amount set out in the loan documents remains in issue.

I should here dispose of a preliminary point made by Ms Downes of senior counsel, who appeared with Ms Payne, for the defendant that, given the plaintiffs’ own evidence and pleading, the plaintiffs’ claim had to fail. She submitted that the pleaded case was not of a representation of some undefined “flexibility” being permitted but rather that RFI could exceed the $25,000 overdraft limit by $30,000.^[36] She submitted that was important for two reasons. First there was no evidence at all to support such a representation. Secondly, the uncontested evidence was that RFI not only exceeded its overdraft by nearly $30,000 but exceeded various loan accounts as well.^[37] It was accepted by Mrs Rodgers that no representation was made that RFI did not need to meet loan repayments. Consequently, RFI was in breach of its arrangements with the ANZ even if those arrangements were as the plaintiffs contend.

As to the first point, given that the pleading was prepared by Mrs Rodgers, the discrepancy between it and the evidence is noteworthy – it at least raises concern that she has no real recollection of conversations, a concern reinforced by evidence that Mrs Rodgers gave which I deal with later. Nor is this the only discrepancy between the pleading and the affidavits.

As to the second point, I am reluctant to tie a self represented litigant strictly to their pleading. The difficulty is that the pleading is far from clear. If the only paragraph raising the issue of the “flexible “ lending was the paragraph to which Ms Downes refers then, as a matter of strict pleading, it is a complete answer to the plaintiff’s case – no expectation could have been created that the ANZ would not act to enforce their securities in the event of the defaults that occurred. But it is not the only such paragraph – there are references throughout the pleading of accommodation to $450,000 without reference to the overdraft.^[38] It may be that the paragraph Ms Downes relies on is a particular of the more general paragraphs. Perhaps not.

To the extent that the defendant has had notice of the allegations against it and is not disadvantaged by any failure to call evidence I do not propose to hold the plaintiffs strictly to their pleadings. The defendant has had notice of the plaintiffs’ evidence in respect to this alleged “flexibility” for months (if not years) prior to trial. There is no disadvantage to the defendant if I consider the issues on the assumption that the “flexibility” notion extended more broadly to the lending generally.^[39]

Credibility

In assessing the credibility and reliability of the witnesses I am conscious of the time that has passed. All witnesses had difficulty in recalling the detail of conversations which is hardly surprising given that the events occurred in 2001 and 2002, 7 years and more ago. Mr Rodgers in the meantime has had two strokes. He struggled at times to recall matters^[40] and I am confident that he was heavily influenced by his wife’s recollections.^[41] I could place little reliance on him as providing any independent support for his wife’s testimony. Mrs Rodgers clearly had much invested in the outcome of the case, and her memory cannot but have been affected by the evidence given by others on past occasions that she has heard and read. As will be seen I have considerable reservations about her reliability.^[42] As well, on many points her accounts, and occasionally detailed accounts, were at odds with contemporaneous documents, sometimes her own, and diary notes.

Mr Blair’s credit was attacked. Mrs Rodgers submitted that he had given evidence before Muir J inconsistent with that which he gave before me. The submission is not accurate. The evidence in question related to Mr Blair’s testimony concerning “flexibility”. Mrs Rodgers has confused his acceptance of the proposition that there would be flexibility to permit funds lent to RFI to be provided to Wodda with the plaintiffs’ concept of flexibility with respect to the amount lent.^[43] That however does not mean that Mr Blair can be taken as entirely reliable. Mrs Rodgers has pointed out discrepancies between his recollections and contemporaneous diary notes.^[44] Generally I have endeavoured to consider the probabilities of the matter in making findings.

Many of the points that Mrs Rodgers seeks to make about the management of RFI’s accounts depend to a large extent on a certain carelessness in Mr Blair’s attention to paperwork. It may be readily accepted that Mr Blair’s attention to detail was not good.^[45] As will be seen, in my view, the inferences that Mrs Rodgers seeks to draw from that inattentiveness are against the probabilities. It is difficult to avoid the conclusion that Mrs Rodgers has taken mistakes made by various bank officers and moulded her case around them.

The bank officers called were generally impressive witnesses and, I felt, not partisan in their approach to their evidence.

Were the Representations Made?

Mr Blair denies making the representations pleaded.^[46]

The allegations that I have summarised at subparagraphs [40] (e), (g) and (m) above are not made out as there was no evidence to support them. There was no evidence of any discussion about or identification of the “certain projected targets” Wodda would have to achieve so as not to overtax the financial reliance on RFI. Mrs Rodgers expressly disclaimed that there was any representation that loans did not have to be repaid - this became “an impression that I got from him that he would allow certain means of flexibility to allow me to - to get through that short period of time to get Wodda on its feet”.^[47] Nor was there any evidence of the claimed representation that the ANZ would not “unreasonably withdraw financial support from RFI, Wodda and the Rodgers”.

The short answer to the allegations set out in subparagraphs [40] (j), (k) and (l) above – the plea that representations were made, and falsely made, that the loans had been correctly approved, that the approval was within the personal authority of Mr Blair and that all necessary internal banking requirements had been complied with - is that if there were any such representations then they were true. The only direct evidence on the point, apart from Mr Blair, comes from Mr Philip Ashe, an experienced ANZ bank officer, and there is no good reason to doubt his evidence.^[48]

A further answer is that there was no evidence of discussion about internal procedures or correct approvals pre-dating the execution of the Letters of Offer. Mrs Rodgers referred to a conversation occurring the day before settlement took place wherein she asserts that she asked “if he [Blair] was sure that everything had been approved in accordance with what we had discussed about the flexibility.”^[49] It is not clear how that claimed representation is relevant to the case. As the defendants contend, there was no evidence of how the plaintiffs’ conduct would have been different had the alleged statement not been made. Whether the statement was made depends on my findings, set out below, concerning conversations about flexibility.

Further, if the contention be that an inference should be drawn to the effect pleaded then I reject the argument. By lending monies to a customer a bank makes no representation at all about its internal procedures.^[50] Internal procedures exist, self evidently, to protect the bank not the customer. In the normal course a customer is not in the least concerned about internal procedures – the customer has the protection of the apparent authority of the bank’s employees.

The pleading in relation to these alleged representations expressly relates the representations to the “extent of the lending outlined in the Letters of Offer”.^[51] The Particulars provided suggest that, contrary to that assertion, it was intended that the references to the lending be to the more flexible limit of $450,000. That claim stands or falls upon whether the representations alleged about the flexible arrangements were made. The ANZ accepts that if made in these terms then the representations were indeed false and misleading.^[52]

As particulars of these allegations it is said that Mr Blair “deliberately” withheld information from his superiors, and that he “falsified” the financial position of RFI. There is no evidence of Mr Blair’s state of mind, and no basis on which any such inferences as to his state of mind could properly be drawn.

Again it is not clear where this allegation takes the plaintiff. The pleading is that the Rodgers were “misled as to their rightful entitlement to obtain a loan”.^[53] RFI in fact obtained a loan. If the contention be that the Rodgers were misled into thinking that RFI was entitled to a higher amount than the amount lent, then the contention again depends on my findings about the alleged flexibility. If the contention be that the Rodgers were misled into thinking that they were “entitled” to the loan in fact made in the Letters of Offer then the answer is that there was no misleading - the evidence establishes they were so “entitled”.

I reject too that there is any basis for the inference set out in [40] (n) above that the loan would not be called up while RFI, Wodda and the Rodgers (or any of them) had the capacity to pay. The inference does not follow from anything proved in the case. RFI took on the primary obligations. It expressly accepted the obligation to meet repayments and presumably would do so if able. There was no evidence to support an inference that the ANZ would take no action if RFI was not meeting its obligations but the Rodgers or Wodda had the capacity to do so.

It can be seen then that the essential remaining representations, those I have summarised in sub-paragraphs [40](a), (f), (h) and (i), are that an additional $30,000 more would be available than provided for in the formal loan documents, that at the end of a six month period a “final lending figure” would be established, that in the meantime no action would be taken by the ANZ to register its security documents with its security department, and the “conditions relating to the registration of the security documents outlined in the Letters of Offer” would not apply.

The Plaintiffs’ Case

Mrs Rodgers (who presented the plaintiffs’ case) contends that the plaintiffs’ version of events should be preferred by reason of the following matters:

RFI’s relationship with the NAB was longstanding and cordial;

The NAB had at no time suggested that the accounts were so delinquent that it would call in all debts and exercise its rights under the securities it held;

Her personal relationship with Mr Crosland, the local NAB manager, was a strong factor against any such move unless there were significant benefits to the plaintiffs;

The sole area of concern with the NAB was the inability to support Wodda in its formative period. There was therefore no point to the transfer of the loan facilities unless RFI was provided with sufficient working capital to support Wodda;

The amount set out in the Letters of Offer totalled $419,000 – basically the same amount as then owed to the NAB. Thus the loan facilities provided by the ANZ, if limited to the amounts in the Letters of Offer, provided no significant benefit to the plaintiffs;

Mr Blair’s management of their accounts, before and after the transfer, was in accordance with such an arrangement.

Contemporary diary notes indicate that there was discussion concerning lending in excess of the existing indebtedness to the NAB and so are consistent with the plaintiffs’ case.

In my view the bulk of these arguments deserve little weight. As I have set out above the relationship with the NAB was far from cordial. Mr Kirk of the Asset Structuring Unit in Brisbane had control over the file in the months leading up to the transfer. He had advised Mr Crosland on 25 July 2001 that he would review the accounts but “if the business was loss making [he] would be recommending a watch/exit status”.^[54] Mr Crosland’s usefulness in permitting flexibility to the operation of the accounts, if that is what he was doing, was plainly an unreliable basis of going forward. Undertakings had been sought and obtained that spelt the end of the Wodda business. Mrs Rodgers accepted that the attitude of the NAB had forced her to look elsewhere for financial support.^[55] I find that Mr Blair’s account of Mrs Rodgers’ dissatisfaction with the NAB at the early meetings to be far more credible than Mrs Rodgers’ assertions.^[56]

Mrs Rodgers puts a great deal of emphasis on the various advances made to RFI or related entities both before and after 5 October 2001. She argues that the absence of formal Letters of Offer with respect to some loans and the fact of accommodation being granted in addition to that set out in the Letters of Offer were each consistent with the flexible arrangement she contends was in place until the final lending figure was determined and securities were to be signed and registered. The conclusion however by no means follows.

The first advance was of $20,000 on 17 September 2001. This was arranged prior to there being any suggestion, on the plaintiffs’ case, of any flexible arrangement or non-registration of securities. As well, Mr Blair explains the circumstances as relating to the need to meet a Telstra account - a recurring problem.^[57]

An advance of $11,716 debited to RFI’s Baroona account, was, on the plaintiffs’ account, in response to a request that came from Mrs Rodgers to meet a problem that had arisen in respect of a credit card debt and well after 5 October.^[58] The flexibility said to have been discussed was in relation to the need to support Wodda, not personal credit card debt. Mr Blair explains that he was asked to address a specific short term problem concerning equipment purchase within two weeks of settlement.^[59] It is not immediately apparent, on either account, why this advance has any bearing on the arrangements that may or may not have been suggested earlier.

Further accommodation was arranged by Mr Nagel in January 2002 who swore that he had never heard of these arrangements and who said that he was seeking to provide temporary accommodation to meet short term exigencies in relation to the account – a perfectly normal banking transaction.

Against the management of accounts point is that Mrs Rodgers did, at times, seek from Mr Blair express approval to go over the overdraft limits.^[60] On her case she did not need that express approval. Further, the extent to which the loan accounts went over their permitted limits with the prior knowledge of Mr Blair is far from clear. Mr Blair asserts that excesses were allowed for a limited time and with discussion regarding repayment.^[61] So the management of the accounts is, at best, equivocal.

The nature, strength and relevance of the relationship with Mr Crosland are difficult to determine. Mrs Rodgers made plain that it was not a sexual relationship. Precisely what form the intimacy took was never clear to me. In a letter of complaint of May 27 2002 to the NAB written by her solicitors^[62] Mrs Rodgers asserted that “an intimate personal relationship” existed which had recently terminated. She there accused Mr Crosland of being unprofessional and unethical. She asserted that Mr Crosland had not enforced NAB rules that cheques be dishonoured where no sufficient funds were available. Indeed the letter asserts that the Rodgers only became aware of such a policy when another manager took over their accounts a month before. Mr Crosland plainly informed his superiors that the relationship was not as Mrs Rodgers portrayed.^[63] Given the state of the evidence I cannot give any great weight to this consideration. In any case I have no doubt that Mrs Rodgers put far more store on achieving her business goals than on any passing relationship with a bank manager.

The plaintiffs point to the concession by Mr Blair that he told Mrs Rodgers he would approve a loan of $443,000.00 as evidence consistent with their case.^[64] This emerged in cross-examination of him concerning his diary note of 25 September 2001 where he recorded RFI’s “funding requirements” in that amount.^[65] Mr Blair, whilst accepting that a statement to that effect was likely to have been made, could not say when that would have been said. The diary note is more a compilation of events to that time (and after that time) rather than a record of events occurring that day.^[66]

It is true that the terms of the diary note strongly suggest that Mr Blair was then attempting to set out the existing loan facilities known to him which the ANZ was prepared to pay out,^[67] with an allowance for an additional overdraft of $25,000. That is consistent with there having been a conversation in which the possibility of funding over and above the existing indebtedness to the NAB was discussed.

But that is not the same as a representation that whatever amount was in fact to be advanced could be exceeded. There is a world of difference between a banker indicating preparedness to lend a nominated amount on the one hand and on the other a preparedness to lend on the basis that a nominated amount lent can be exceeded at the whim of the customer. The conversation is consistent with the first but not necessarily the second situation.

The only arguments deserving of serious consideration, in my view, are those set out in [62] (d) and (e) above relating to the utility of the transfer.

Whilst acknowledging the force in those arguments it should not be overstated. There was a significant advantage to the plaintiffs in transferring to the ANZ - monies could be directed to Wodda. Mrs Rodgers was very keen to pursue the Wodda business. She plainly thought that it would be very successful. There are indications that she had invested very substantial sums in the business.^[68] When she met Mr Blair in August 2001 she had no intention of “shelving” Wodda.^[69] Wodda was not capable of paying its debts throughout 2001. If the Rodgers could not funnel money to Wodda through RFI then they almost certainly would lose Wodda.

The Defendant’s Case

I turn now to the arguments against the plaintiffs’ case. The first significant hurdle for the plaintiffs is that in the course of her cross-examination Mrs Rodgers resiled from the claim that anything was in fact said by Mr Blair about the flexible arrangement as she has pleaded and sworn to. The following occurred:

“Ms Downes: So this concept of flexibility was going over the limits of a facility - in up to what amount? Do you have an idea, or not really? - I think based on - I always understood that we had that flexibility, and I think I - whether I concluded it from the fact that there was the 20,000 plus the 419, plus the other 16, I - I may have just concluded that we had that flexibility.

Without Mr Blair having said anything to you about it? - Well, other than the fact that he was the one that advanced the money.

He was - you're giving evidence about what you understood, based upon how he conducted your accounts? - Yeah, based upon

Rather than on what he said to you, is that fair? - as I said, look, for me to say that Mr Blair sat me down in an office, like you know, I have done with - on occasions, with other bank managers, right when you've gone to get a loan, no, Mr Blair never sat down and said, "Okay, now you want this from the bank, this is what the bank can give you….."^[70]

I attempted to clarify that answer:

HIS HONOUR: Just pause there, if you would. Can I go back to an earlier question that Ms Downes asked you, and I don't - I don’t think you gave it an answer. She asked you whether this flexibility that you've spoken of that I take it you've considered applied to your arrangements with the ANZ at the commencement of those arrangements; the question was, was your attitude based on how Mr Blair conducted the accounts, as opposed^[71] to what he said to you. So what's the answer to that? - I think it was, your Honour.^[72]

I don't understand which one you're choosing? - It was probably more the conduct of the way he dealt with us during that period of time, and his representation to me that you know, he would support RFI until for those - time till what it was standing on its own two feet. And because we'd gone through cash flows, and because we'd established what it would need, it was probably that representation came from a mixture of the conduct of the way in which he would just advance the money, or as well as those discussions about supporting Wodda for that six months. As I said, there was never a time when Mr Blair and I sat down and he said, "this is the arrangement", or, "this is the deal." It was simply this preferences (sic) - you know, ANZ's prepared to see you through the period that - for Wodda to get on its own two feet.”^[73]

The plaintiff’s case was not that an inference could be drawn from Mr Blair’s conduct that the ANZ would act in a certain way but rather that he expressly made the representations pleaded. That is plain from the pleading^[74] and from the evidence led. In her affidavit and evidence Mrs Rodgers swore to the occurrence of the conversations in which she claimed that the representations were made. Those conversations I note contradict the above passage of evidence and were not sworn to on previous occasions that Mrs Rodgers has been before the courts.^[75]

The establishment of the representations depends entirely on the reliability of Mrs Rodgers’ evidence. The concession made in cross-examination set out above not only undermines the case the plaintiffs advance regarding the representations concerning the supposed “flexible arrangements” but also undermines substantially the reliability of Mrs Rodgers’ testimony in respect of any aspect of the case. Her evidence concerning the supposed representations about the flexible arrangements, at odds as it was with her affidavit evidence, leads me to question how much of her evidence is assumption and how much recollection of actual events. It seems to me that Mrs Rodgers failed to draw the critical distinction between what was actually said and done by Mr Blair and what inference Mrs Rodgers drew, or now draws, from those facts.

As well there seemed to me to be an internal inconsistency at times in Mrs Rodgers’ evidence. I have already mentioned that Mrs Rodgers conceded that no representation had been made to her that enforcement action could not be taken by the ANZ if RFI was in default.^[76] She also accepted that the ANZ plainly had the right to exercise the securities should RFI become insolvent.^[77] Assume for the moment, in the plaintiffs’ favour, that Mr Blair said something that caused Mrs Rodgers to assume that securities would not be registered nor conditions apply. I make no finding that that occurred. But if the claimed representations concerning the registration of the ANZ’s securities, in whatever terms they may have been expressed, did not go, at least in Mrs Rodgers’ mind, to remove ANZ’s capacity or intention to enforce them then what is their significance? If the right to enforce the securities was understood as remaining in place at what point was this right to enforce triggered? If triggered at an excess of $450,000 in borrowings then when was this discussed and in what terms? No credible evidence was led of any conversation about the matter.^[78]

Quite apart from Mrs Rodgers’ contradiction of the case pleaded and my concerns about her reliability there are several considerations, some more cogent than others, that go against the plaintiffs. First, if the plaintiffs needed, and appreciated that they needed, $450,000 why not simply obtain a loan in that amount? There is no good reason not to and good reasons to do so – their entitlements would be clear, and they could avoid the “reference fee” issue that was costing them up to $3000 per month at the NAB. Mrs Rodgers explanation that the extra $30,000 was only a short term need is unconvincing.^[79] Her own case was that the period in which the flexibility would be required was six months and Mr Blair had recorded up to eight months as possibly necessary for Wodda to be self supporting. Those are extended periods over which to needlessly expose RFI to reference fees. Her explanation also differs from the explanation given to the Court of Appeal in May 2003.^[80] It does not sit well with her account that it was Mr Blair, not the plaintiffs, who fixed on the $419,000 figure, which I discuss below.^[81]

There is no suggestion that any superior to Mr Blair refused approval for the $443,000 mentioned in the diary note. Nor is there any suggestion that Mr Blair was opposed to lending such an amount. Mr Blair was plainly keen to support the Rodgers. So if the monies were in fact wanted it is difficult to see why they would not have been advanced. These facts seem to be consistent only with the view that it was decided by the Rodgers that $419,000 would be sufficient. There is no apparent reason why they would not have pursued – and obtained - such assistance as they needed. Certainly no credible reason was advanced why they would not.

Secondly, RFI’s need for capital – and hence more debt - depended to large extent on Mrs Rodgers’ views as to its profitability. The more optimistic those views then the less need there was to increase the indebtedness of RFI. Wodda’s need for capital could be met from the expected increased revenues. Mrs Rodgers certainly did not lead evidence that she was pessimistic about those prospects, rather the converse, and the thrust of her case was that RFI was quite profitable.

Thirdly, the plaintiffs face the very significant difficulty that they made no reference to these arrangements over a period of 7 months during which the ANZ complained of defaults, referred the accounts to their default department, appointed investigative accountants, issued notices of demand through solicitors, and then appointed receivers and managers. The last three actions plainly depended on the validity and enforceability of their securities. There were extensive dealings and communications between the parties in that time. Yet not only is there no mention of these representations but what is said is entirely consistent with the credit limits in place being those expressly agreed in the Letters of Offer^[82] and the ANZ being entitled to exercise their rights under the securities.^[83]

Further, the plaintiffs failed to assert these allegations when they first came before the courts. In the proceedings before White J, commenced in August 2002 to prevent the sale of RFI’s assets and when one would expect these matters, if true, to be uppermost in their minds, both Mr and Mrs Rodgers swore affidavits yet neither made reference to these claimed representations.

The failure of the plaintiffs to refer to these matters is simply inexplicable. They faced the loss of all that they had worked for over a 15 year period including their home. Yet it is common ground that nothing was said to Mr Ashe or Mr Oakes – the senior managers from the ANZ to whom it would have been logical to speak.^[84] Mrs Rodgers does not impress as someone who would hold back if her rights were so blatantly being transgressed. Mrs Rodgers response to this is to argue that the plaintiffs assumed that Mr Oakes had this information already.^[85] That submission is no answer to the point that if Mr Oakes was acting in complete disregard of the arrangements that the plaintiffs contend were in place then one would expect the plaintiffs to complain and to do so vociferously.

Fourthly, Mrs Rodgers’ account in her affidavit of her dealings with Mr Blair seems improbable.^[86] She claims to have told him at an early stage that she required advances of “at least” $450, 000 made up of $400, 000 for RFI and $50,000 for Wodda. In response she received a letter dated 3 September (but she contends it was received late in September) detailing proposed advances of only $394,000.^[87] She says that she contacted Mr Blair and queried the amount, pointing out that she required the $450,000. She claims he said words to the effect that she should leave it with him and that he would get back to her. In the course of the conversation she alleges that he then explained to her that the interest rates of the ANZ were better that the NAB’s rates. Her NAB manager, Mr Crosland, told her later that day that that information concerning interest rates was wrong.

It is against that background and with that information that Mrs Rodgers claims that she determined to transfer the loan accounts to the ANZ.^[88] Mrs Rodgers does not contend that she received any further indication from Mr Blair as to what advances would be made before she rang him informing him of her decision. On her own account she had good grounds for being very careful in her dealings with Mr Blair. According to the man with whom she was having an “intimate relationship”, and who had greater experience than her in banking matters, she had been misled about the comparative interest rate advantage. And Mr Blair, in his only explicit written communication to her, had somehow totally misconceived the point of the exercise by omitting entirely Wodda’s requirements – which, she asserts, were essential to her.

If a certain level of financial accommodation for Wodda was crucial to the whole arrangement then it is a surprising feature of the case that there was no express enquiry made of Mr Blair of the precise extent of the ANZ’s preparedness to lend before reaching so important a decision.

The improbability is heightened when one considers Mrs Rodgers’ account of what then occurs at the signing of the Letters of Offer on 5 October 2001. By that time she had received no assurance, and had sought no assurance, that her needs would be met. It is a striking feature of the plaintiffs’ case that they contend it was Mr Blair who limited the loan amount to $419,000, not Mrs Rodgers.^[89] Mrs Rodgers maintained that she had made perfectly plain that she wanted $450,000. Her affidavit suggests that she only knew of the limitation to $419,000 and of the “flexible” arrangement on the day of execution of the Letters of Offer. In these circumstances I would expect close examination of the Letters of Offer to see how they did compare to the totally unacceptable proposal last provided. I would expect detailed discussion as to why the funding put in place was so much less than the $450,000 she was expecting. Rather Mrs Rodgers’ account in her affidavit (putting to one side the concessions in cross-examination) is that without discussion Mr Blair said that there was to be “flexibility to $450,000”, that being a “short term arrangement for approximately 6 months”, and that he, Mr Blair, would not be “sending the security documents off for registration until we had finalised the lending for RFI”.

Fifthly, it is difficult to see why Mr Blair would need to put in place such an arrangement. He had authority to lend to $450,000 given the credit risk that he had calculated the ANZ was taking on.^[90] He was plainly enthusiastic about the Wodda concept. There seems no good reason why he would not have put in place facilities for $450,000 if that had been discussed and required.

There were certainly good reasons why Mr Blair would not take the course suggested by the plaintiffs – presumably it was his job to advance as much as possible to customers with appropriate risk ratings. And, more significantly, for a bank officer to urge that lending limits put in place could be ignored and that the bank would advance $419,000 without security being registered (or on the plaintiffs’ case even executed) or without security conditions applying is truly remarkable. RFI and the plaintiffs had offered these or similar securities to the NAB. There is no suggestion from the plaintiffs that they offered any objection to securities being obtained and registered. They were in fact keen to get ANZ’s backing. From Mr Blair’s perspective he was dealing with a company that the NAB already had placed with its Asset Structuring Unit. Wodda was still in its formative period of a start up operation and was still losing money and on the cash flow projections provided would continue to do so for up to 8 months. There was every reason why he would want security to be in place. It would almost certainly result in disciplinary action and possibly dismissal if these arrangements that the plaintiffs contend were in place came to light.

Representation by Conduct

Even if the case were redrawn as one asserting that inferences could be drawn from the conduct of Mr Blair justifying the assumption of the pleaded representations it would not assist the plaintiffs. Given my concerns about the plaintiffs’ evidence I cannot make any finding of conduct going beyond what Mr Blair conceded he did and said. I have already referred to his actions.^[91] Those actions should be judged in the light of the information he was given about future cash flow projections.^[92] Such conduct, in context, falls a long way short of conduct that would support the drawing of the inferences that the plaintiffs plead.

The date of execution of the security documents is in issue. As I explain below I am satisfied that the plaintiffs did execute the security documents on 5 October 2001. Any consideration of the inferences that the plaintiffs could reasonably have derived from Mr Blair’s conduct must bring into account that Mr and Mrs Rodgers executed the Letters of Offer and security documents containing terms directly contrary to the inferences that the plaintiffs now assert. The plaintiffs cannot be heard to say that they did not know what their signatures bound them to. As Latham CJ observed in Wilton v Farnworth^[93] any weakening of the principle of the binding effect of signatures “would make chaos of every-day business transactions.”^[94]

Rejection of the Plaintiffs’ Case

The probabilities strongly favour the view that Mrs Rodgers had confidence in the capacity of her businesses to generate sufficient monies to support Wodda and that was crucial to her. All that she needed was to be able to source RFI’s cash flow. Her capacity to manipulate the accounts at the NAB to assist Wodda was becoming significantly more difficult - whether one accepts her version or the NAB’s version of Mr Crosland’s management of her accounts.^[95]

In summary there seem to me to be no compelling reason to accept the plaintiffs’ case and many reasons against acceptance. I am satisfied that the loans set out in the Letters of Offer were at the level Mrs Rodgers required and requested. I reject the fundamental basis of the plaintiffs’ case that relevant representations were made.

The Execution of the Security Documents

On the fourth day of the trial Mrs Rodgers sought and obtained leave to amend the statement of claim to introduce paragraphs 16(e)(x) and 29 and to amend 16(e)(xi).^[96] The effect of the amendments was to introduce^[97] the contention that there was an arrangement or understanding that the Rodgers did not need to execute security documents until a review in April 2002, and that the mortgages and mortgage debenture were executed on 22 January 2002 under the mistaken belief that they related to their son’s company’s borrowings.

Unrecognised by me at the time leave was given, the amended pleading tendered also included amendments to paragraph 16(d)(iii) and raised allegations that the guarantees were not executed until the 22^nd January 2002. The only relevant effect is that the defendant tailored its cross-examination to the amendment expressly discussed. Plainly its case has been that all relevant documents were signed on 5 October 2001.

The question of the signing of security documents was the focus of the trial before Muir J. At that time the Rodgers contended that their signatures on the security documents were forgeries. To meet that case the ANZ proved to the satisfaction of the Court that the Rodgers signed the documents and did so on 5 October 2001.

Now the plaintiffs’ case is that the signatures must have been applied on 22 January 2002 in the interview with Mr Nagel concerning security for an advance to their son’s company, Web Publishing Australia. Mrs Rodgers conceded that she has no memory as to when the mortgage debenture was signed.^[98] The plaintiffs’ new position admits not merely that they are fixed with findings that they dispute but cannot now challenge but that their allegations of forgery were baseless. So dramatic a change in position gives me little confidence that their new assertion is any more soundly based than the last.

Because the issue concerning execution of the security documents was not a live one until the fourth day of the trial neither party led the detailed evidence that was before Muir J. Mr Nagel’s evidence presented to Muir J, both in affidavit and oral form, was tendered pursuant to s 92 of the Evidence Act 1977 (Qld) as Mr Nagel is now deceased. The relevance of his evidence, initially at least, went to his denial of making any relevant representation. Other evidence of what occurred in the proceedings before Muir J was tendered^[99] by the defendant but its precise status was not the subject of submissions. I assumed that the material was tendered to enable cross-examination on the plaintiffs’ prior inconsistent statements and not as going to the truth of the matters then attested to. Presumably the evidence of the relevant bank officers, particularly Ms Matta, was included in case context became important. The evidence now assumes greater significance.

In case the plaintiffs have assumed that Ms Matta’s evidence is before me as going to the truth of the matters asserted I will assume likewise. Some of the submissions made seem to treat the material as going to truth rather than merely inconsistency and no objection has been taken to my treating the evidence as evidence of the truth of the matters sworn to.

The evidence of Mr Nagel and Ms Matta establish two things that are helpful to the plaintiffs – that security documents were not registered until 22 January 2002; and that a diary note was prepared by Ms Matta showing that the security documents were not executed until that date.

As to the first point I am conscious that the failure to lodge the documents for stamping and registration on or shortly after 5 October 2001 as would be normal practise is consistent with the plaintiffs’ present case. It is consistent too with an oversight by the relevant bank officers and of Mrs Rodgers, being aware of the fact, moulding her case, perhaps unconsciously, to suit the fact.

As to the second point, Ms Matta has explained in her affidavit filed in the proceedings before Muir J that she inserted the date of 22 January 2002 on the security documents and prepared the diary note on the mistaken assumption that her superior, Mr Nagel, had had the documents executed that day.^[100] He made no statement to her to that effect, but rather merely handed to her a bundle of documents to deal with. She was not present at the signing. Her account is not inherently improbable.

Against the plaintiffs’ contentions is a substantial body of evidence. On 28 September 2001 a securities worksheet was prepared by Mr Blair’s assistant, a Mr Sleaford, requesting preparation of a transfer of mortgage and “all other docs” relating to the then proposed loans.^[101] On 2 October 2001 a further worksheet was prepared by Mr Sleaford requesting preparation of the security documents on which the bank subsequently relied.^[102] All this is consistent with having documents ready for signature on 5 October, precisely as one would expect, especially given the securities that the NAB had in place in respect of the same risk.

Mr Blair has recorded in a diary note headed 5 October 2001, countersigned by Mr Sleaford, that the Rodgers signed the security documentation on that date.^[103] The documents are dated 5 October. Cameron Blair’s signature appears as the witness to the Rodgers’ signatures. He has sworn to the fact that he witnessed their signatures. He was present on 5 October 2001 but not 22 January 2002.

Mr Nagel was the bank officer who dealt with the Rodgers on 22 January 2002. His handwriting and signature do not appear on the documents^[104] as one might expect if they were executed on that day and in front of him. He had no recollection of arranging for the documents to be executed by the Rodgers and did not believe he did so.

The allegation that the documents were not signed on 5 October 2001 but on 22^nd January 2002 requires that a series of improbabilities be accepted - that Mr Blair would have security documentation prepared that he did not want executed; that he would pretend to witness signatures when he did not; that he would not want the securities executed; that Mr Blair would have Mr Sleaford countersign a false diary note that securities had been signed and which Mr Sleaford could easily discover was false; alternatively that Messrs Blair and Sleaford conspired to prepare a false diary note; that Mr Nagel would then act in concert with Mr Blair by not explaining to Mr and Mrs Rodgers the earlier error in failing to obtain signatures (as it would appear to an honest bank officer) and by representing that the documents related only to the Web Publishing Australia debt and not to the earlier lending; that Mr Nagel would not ensure that he record his witnessing of the affixation of the Rodgers’ signatures in circumstances that called out for caution; and that Mr Nagel would either forget about such events when he came to give his evidence before Muir J, or deliberately lie. This is to pile improbability on improbability.

There is a further, perhaps small, point. On the plaintiffs’ version Mr Blair’s signature as witnessing officer was either already on the documents when they signed or was affixed later. It is common ground that he was not present on 22 January but in Darwin. The plaintiffs’ account therefore requires either that the Rodgers did not notice that Mr Blair had purported to already witness their signatures before they were affixed, or that Mr Nagel for some reason sent the documents off to Darwin to enable Mr Blair to falsely assert that he witnessed the affixation of signatures. Either seems unlikely.

Finally, the defendant points out that in written submissions made in appellate proceedings 352 of 2002 it was conceded by the plaintiffs’ counsel that Mrs Rodgers signed the mortgage debenture on 5 September 2001 – plainly enough a mistaken reference to 5 October.^[105] The force of this submission is somewhat undermined by the contents of paragraph 14 of Mrs Rodgers’ affidavit before White J.^[106] Nonetheless, it can be said that to add to the improbabilities, the plaintiffs’ own counsel misunderstood a fundamental instruction as to the timing of the execution of the security documents which were then under attack.

It is plain that there was confusion in the preparation of diary notes by bank officers. To the extent that any diary note records that security documents were executed by the Rodgers on 22 January 2002 then I find that it is a mistaken record.

I am satisfied to the necessary standard that the security documents were executed on 5 October 2001.

Negligence

Paragraph 5 of the Claim and the heading to paragraph 17 to 23 of the Further Amended Statement of Claim each suggests that the plaintiffs are pursuing a case of “negligent advice” against the defendant. However, as pleaded, the case concerns the provision of information rather than advice – the information contained in the representations set out in paragraph 17 of the plaintiffs’ pleading. It is pleaded that Mr Blair knew or ought to have known that Mr and Mrs Rodgers would rely on those representations and be induced by them to change banks, hence there was a duty on the ANZ ‘to take care in the making of the representations” and that ANZ breached that duty by making the representations.

The representations set out in paragraph 17 of the Further Amended Statement of Claim have already been dealt with. I do not accept that they were made by Mr Blair. In any case, as I have earlier pointed out, the representations alleged in subparagraphs 17 (a), (b), and (c), concerning the internal approval process being complied with, if they were made, were accurate.

That is sufficient to dispose of the case. However given the submissions made by the defendant I will add the following. In my view it is wrong to submit, as the defendant does, that any consideration of the duty owed by the bank to the plaintiffs is in the context only of creditor and guarantor, and that hence no duty was owed. Whilst Mr and Mrs Rodgers eventually became the guarantors of RFI’s debt to the ANZ that is not the only capacity in which Mr Blair dealt with Mrs Rodgers. Rather she was the sole director of the customer that ANZ wished to win. She was also a shareholder of RFI, as was Mr Rodgers. The Rodgers provided guarantees and mortgages over their property only because of the ANZ winning RFI as a customer. The plaintiffs’ interests therefore were liable to be affected in several ways if the information provided by Mr Blair was inaccurate. It seems to me to be quite artificial to suggest that in the circumstances that pertain here, of close identification of parties and interests and the one course of dealing, that if the Rodgers complain of loss in one capacity a duty is owed but not if they complain of loss in another capacity.

In my view, a bank manager owes a duty of care to a prospective customer to ensure that the advice and information provided as to the way in which the bank would conduct the accounts of the customer, should they take out substantial loans, must be accurate. That a bank officer owes a duty to be accurate in what is said to a customer was expressly accepted in Potts v Westpac Banking Corporation.^[107] If the three conditions identified by Brennan CJ in San Sebastian Pty Ltd v The Minister^[108] are necessary and sufficient to establish the existence of a duty of care, as I think they are, then they are met here.

The claim fails as I am not satisfied there was any inaccurate information provided.

Unconscionable Conduct

The plaintiffs rely upon a plea of unconscionability both under the general law and in breach of s 12CA of the ASIC Act. I do not understand there to be any difference in the relevant principles that apply. Under the latter provision the ANZ is proscribed from engaging in conduct “in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law”.

To succeed on this ground the plaintiffs must establish that the ANZ Bank was in a superior position to them because they suffered from “some special disability or [were] in some special situation of disadvantage…” The plaintiffs must show that the ANZ made some unconscientious use of that superior position or superior bargaining power.^[109]

There is no pleading that the plaintiffs did suffer from any disability or were in any situation of disadvantage vis à vis the bank. Counsel for the defendant contend that on that ground alone this claim ought to fail citing Mitchell v Pacific Dawn Pty Ltd.^[110] That decision is binding on me and requires the rejection of the plaintiffs’ claim.

In case the matter goes further and putting to one side the deficiency in the pleading I cannot see that there is any condition or circumstance that placed the Rodgers at any special disadvantage vis à vis the bank. Whilst I have no doubt that the plaintiffs felt under some pressure to obtain an alternative source of financial support I cannot see that such pressure in any sense placed them into a position of “special disadvantage”. I understand that term to have the meaning explained by Mason J in Commercial Bank of Australia Ltd v Amadio:

“I qualify the word ‘disadvantage’ by the adjective ‘special’ in order to disavow any suggestion that the principle applies whenever there is some difference in the bargaining power of the parties and in order to emphasise that the disabling condition or circumstance is one which seriously affects the ability of the innocent party to make a judgment as to his own best interests, when the other party knows or ought to know of the existence of that condition or circumstance and of its effect on the innocent party.”^[111]

In any case even if the plaintiffs could demonstrate that they were in such a position of “special disadvantage” I see no basis upon which a finding could be made that the ANZ unconscientiously took advantage of any superior position. The transaction the plaintiffs seek to impugn is one whereby the indebtedness of RFI and themselves to the NAB as it existed on the day that the Letters of Offer were executed was replaced by an equivalent indebtedness to the ANZ^[112] with similar or equivalent securities. I cannot see that the transaction was anything but “fair, just and reasonable”.^[113]

Mrs Rodgers is now and, I am satisfied, was then an intelligent and articulate person who had been in business for a long period of time prior to the transaction with the ANZ and who can be taken to have been perfectly well aware of the risks involved in the undertaking. Her assent to the transaction was in no sense procured by any unconscientious advantage taken by the ANZ by virtue of the fact that it was a well capitalised lending institution, and Mrs Rodgers desirous of an alternative source of finance.

Unconscionable Post-Contractual Conduct

Whilst the absence of any pleading or evidence of any “special disadvantage” suffered by the Rodgers is a complete answer to the plaintiffs’ case, whether the conduct complained of be pre or post-contractual, in deference to the arguments presented I will deal with the extensive complaints made about the post contract actions of the ANZ.

By their pleading the plaintiffs assert that “the totality of ANZ’s conduct in relation to the course of dealing constitutes unconscionable conduct” and then give particulars some of which relate to conduct after Letters of Offer were executed and, on my findings, securities put in place.

In paragraph 16(d)(v) and (vi) allegations are made concerning further monies being advanced. The first sub-paragraph refers to the amount of $11,716 earlier mentioned that was credited against an overdraft facility of RFI allegedly without Mrs Rodgers’ authority. The monies were used by Mrs Rodgers, she says, to pay out an ANZ credit card. Mrs Rodgers sought the advance from Mr Blair, took advantage of it when made, and, if it was a mistake, at no time sought to put in place any alternative arrangements. I cannot see anything unconscionable about the ANZ’s act.

The second advance relates to a loan of $30,000 to their son’s company Web Publishing Australia. This was done at the express request of the plaintiffs. Some months later they, on their own account, knowingly executed security documents in relation to that advance. Again there was nothing unconscionable about that act.

Paragraph 16(e) of the Further Amended Statement of Claim is not, on its face, directly relevant as it is a plea that the ANZ breached their obligations under the representations, which representations I have found were not made. However, some pleas are not premised on the making of those representations. I will discuss those pleas on the footing that they are intended to be particulars of the alleged unconscionable conduct of the ANZ.

The pleading refers to letters written by the bank on 21 February 2002 and 2 May 2002. In the first letter there was a suggestion that an “action plan” be implemented within three months. As part of that plan the ANZ required that certain information be provided by 21 March 2002. All of the information sought was not provided most notably the final accounts for all trading entities as at 30 June 2001. Further the ANZ set out precisely the accounts which were out of order and which required attention. To the extent that the pleading suggests that the contents of the letter themselves constituted unconscionable conduct the allegation is without merit.

Mrs Rodgers argues that the plaintiffs acting reasonably ought not to have appreciated the importance of the requests for further information in this letter. ^[114] I cannot accept that is so. The context included that temporary accommodation had been provided by Mr Nagel to the end of January, all accounts were out of order, and the last accurate statement of RFI’s financial position that the plaintiffs could provide was over 20 months old. The significance of up to date financial statements to a lending institution in such circumstances is obvious. To emphasise the point a relatively brief time of one month to comply with the requirement was allowed.

To the extent that the allegations depend upon preferring the evidence of Mr and Mrs Rodgers over the evidence led from the witnesses called by the ANZ then I record my preference for the witnesses that the bank called. They were, in general, careful in the evidence they gave, their evidence was often confirmed by contemporaneous documents and was inherently more credible.

Paragraph 16(e)(ii) alleges that the “ANZ by its silence and failure to respond to approaches made by the Rodgers led them to believe that they had three months within which to satisfy ANZ’s request to implement an ‘action plan’”.

What is meant by the pleading, and what follows from the belief said to be engendered by the ANZ’s alleged “silence and failure to respond” is nowhere made plain. By the terms of the letter of 21 February 2002 the bank specifically advised that “all general and any specific terms and conditions of use for each account continued to apply”. The bank expressly stated that it “reserves all its rights under loan agreement(s)”. The letter advised that the provision of the information requested would “assist the bank in the assessment of your ability to continue meeting all current financial commitments including those to ANZ”. No reasonable person could have taken the letter to mean, and I am confident that the Rodgers did not take the letter to mean, that the ANZ would not act to protect its interests, if necessary, within the three month period in which the Rodgers were to develop an “action plan”. As was observed by White J in relation to the same argument put in the first of the proceedings between the parties the letter is clear as to its terms.^[115]

From the bank’s perspective things worsened following the letter of 21 February 2002. The next communication was a facsimile from Mrs Rodgers of 19 March 2002 in which she made an “urgent request” for assistance in paying Telstra the sum of approximately $19,300.00.^[116] Mr Oakes records in a diary note of 22 March 2002 that he spoke with Mrs Rodgers, explained that the situation was “unsatisfactory” and that “the bank is most reluctant to become further involved”. He recalled that she advised him that the information requested earlier would be sent the following week.^[117]

In a review diary note of 24 April 2002, Mr Oakes recorded that very little of the financial information requested had been supplied to date, that in a number of telephone discussions Mrs Rodgers had “in the main…avoided discussion on issues like arrears, financial data and appears to be running the business in crisis mode seeking special favours for the payment of urgent creditors and wages”. He recorded that the previous week Mr Rodgers had rung to advise that he was now in control and “was instituting measures to cut costs and meet creditor payments”. This was accompanied with a request that the bank meet the payment of $19,000 owed to Telstra for the monthly internet service which request was refused. Despite that refusal a cheque was issued and was dishonoured by the bank. Mr Oakes recorded “customers continue to promise reduction in arrears and clearance of the excess by the injection of shareholder funds of up to $100,000. Deadlines for receipt of these funds have moved on a number of occasions and their eventual receipt would seem uncertain”.

If the point of the pleading is to assert that the ANZ led the Rodgers to believe that they had until 21 May 2002 before the bank would act to protect its interests (eg by issuing notices of demand, appointing investigative accountants, and appointing receivers and managers) then the simple answer is that there was no such promise made and no reason for any such expectation. In any case no evidence was led to show what difference it would have made if the bank had delayed its hand until 21 May 2002 rather than acting on 8, 10 and 13 May as the Rodgers contend the bank did.

Against this background of an inability to keep the loan accounts within limits, of urgent requests for assistance with the payment of creditors and wages, of the issuing of cheques for substantial sums in excess of limits and despite express refusal of accommodation, and of promises of injection of funds that did not come to pass, the ANZ had every reason to act as it did. There was nothing unconscientious about its exercise of its legal rights.

There is complaint that the ANZ did not keep the Rodgers informed of their intention and actions through this period. I reject that contention. The letter of 2 May 2002^[118] and the conversation between Mr Rodgers and Mr Ashe of 8 May 2002^[119] provided ample notice of the bank’s intentions and actions.

Complaint is made that a Deed of Appointment of Receiver and Manager was executed on 10 May 2002 and without adequate notice. That plea is simply wrong. It is evident that the execution of the Deed on 10 May 2002 was in error and the Deed acted on was in fact executed on 19 June 2002 and after investigative accountants had reported.

There is complaint that the ANZ by its solicitors had a Notice of Demand dated 8 May 2002 served on Mr and Mrs Rodgers on 11 June 2002. The evidence of Mr Vickery establishes that in all probability the notices were posted on 8 May 2002. If the intent of the pleading is to assert some deliberate act to mislead the Rodgers then it is not made out. Either the Rodgers are mistaken as to when they received the notices or the delay in delivery has been caused by some vagary of the post. In any case, it is not clear what follows from the complaint.

Sub-paragraph 16(e)(x) pleads a number of issues. I do not accept the fundamental premise of the paragraph that Mrs Rodgers executed the mortgage debenture on 22 January 2002.

Sub-paragraph 16(e)(xi) and (xii) plead that prior to 20 June 2002 the ANZ unreasonably refused to accept a reduction of capital or to negotiate with the Rodgers and acted unreasonably “in circumstances where the overall financial position of RFI, Wodda and the Rodgers as one group, was far stronger” than in October 2001. On 24 May 2002 the independent accountants provided a report which concluded that RFI was insolvent. Mr Vincent’s evidence supports that conclusion. Mr Vincent is a very experienced forensic accountant. The ANZ’s experience with their own accounts made plain that RFI was struggling to pay its debts.^[120] Plainly enough, the ANZ had every reason to protect its own interests. The Rodgers had been on notice since at least the letter of 21 February 2002 that action was required. In my view there was no legal or equitable obligation on the ANZ to accept any partial offer that the Rodgers might be inclined to make or not to insist upon their strict legal rights. Plainly enough, the ANZ did not accept that the overall financial position of the corporate group was “far stronger” than in October 2001. The Rodgers had months in which to find alternative finance. If the financial standing of the group was as the Rodgers contend - one of demonstrable solvency, obvious ability to meet debts, and growing profitability - then one would expect the plaintiffs would have ready access to alternative finance. The ANZ’s interests were best protected by forcing the Rodgers’ to find some other financier of the group and the best way to bring that about was to insist on its legal rights. There was nothing unconscientious in its insistence on the exercise of those rights.

Sub-paragraph 16(e)(xiii) pleads that the Letters of Demand were not received until 11 and 12 June 2002 and that the contents of the investigative accountant’s report was not disclosed to the Rodgers. It is pleaded that the consequential effect is that the Rodgers were unaware of the amount owing to ANZ, that RFI was trading whilst insolvent, and that this made it impossible for the Rodgers and for RFI to refinance. There was no evidence at all that, upon request, the Rodgers would not have been provided with the precise sum needed to pay out the ANZ. The precise figures were provided in the letter of 21 February 2002. Payment of the debts was, after all, what the ANZ wanted throughout this time. Nor did the non-receipt of the Notice of Demand (if that occurred) between 8 May and 11 and 12 June cause RFI to trade whilst insolvent any more than did the contents of the investigative accountant’s report.

There was no evidence that any of these matters had any causative effect on the ability of the Rodgers and RFI to refinance. The evidence seems to indicate that the Rodgers were making active efforts to raise monies and were unable to do so. I cannot see how the withholding of the fact that independent accountants thought the company was insolvent made their task more difficult.

Paragraph 16(e)(xiv) asserts that the investigative accountants made false representations concerning RFI’s liability to Telstra and the Australia Taxation Office (ATO) and its liabilities in relation to certain property, The paragraph further asserts that ANZ relied upon those false representations knowing them to be false. Mr Park, one of the investigative accountants, deals with that allegation in his affidavit.^[121] Effectively the accountants proceeded on the information given to them by Mr and Mrs Rodgers and their senior employees. If there is any error it is the fault of the Rodgers. It is not shown that the ANZ had knowledge that the information set out in the report was false. The plaintiffs do not plead what the true position was, nor do they plead what the consequence was of ANZ’s reliance upon the figures set out in the accountant’s report, as opposed to the true position. For present purposes there is certainly nothing unconscientious in the ANZ relying upon the accountant’s report based as it was upon a close examination of the books of accounts kept by the Rodgers and on information supplied by them.

In any case I am not satisfied that there was any false representation. In respect of liabilities to the ATO the accountants advised that “from the records available we were not able to ascertain which amounts have been paid and are therefore unable to accurately advise what the amount due to ATO is made up of.”^[122] They concluded that in excess of $50,000 was owing^[123] which subsequent analysis revealed was accurate.^[124] In respect of Telstra they recorded that the debt had been $200,000 but a repayment schedule had been agreed to that would remove the debt by December 2002.^[125] Mr Vincent thought that the accountants had understated the debts in each instance.^[126] His opinion was not shown to be wrong. The assets allegedly wrongly attributed made a difference of only $5,000 and had no significant effect on the net asset position – one of a deficit of $504,874.^[127]

Sub-paragraph 16(e)(xv) pleads that the ANZ did not co-operate with the Rodgers when “Mr Rodgers provided ANZ with details of the negotiations that had been entered into for the half sale of Rocknet”. The allegation presumably relates to Mr Rodgers’ conversation with Mr Terry Simpson of the ANZ on 12 June 2002 concerning negotiations that he, Mr Rodgers, was having with a Mr John Thew. The thrust of the information provided to Mr Simpson was that Mr Thew would not be back in Rockhampton until the end of June 2002 and had some interest in the purchase.^[128] The complaint here is allied with that in sub-paragraph (xvi) that the ANZ did not give RFI or the Rodgers reasonable time to make alternative arrangements to address the Notices of Demand. They had been put on notice on 21 February that action had to be taken, and they were well aware that the bank was contemplating enforcement by reason of the terms of the letter of 2 May. I have recorded already Mr Oakes’ diary note concerning the promises of injection of private capital. In the circumstances there was nothing unconscientious in the ANZ determining that it would wait no longer. In any case no evidence was led from Mr Thew to the effect that he would have been prepared to purchase one-half of Rocknet on the information that was known in June of 2002, even on the basis of the financial information which the Rodgers contend was accurate.^[129]

In summary the plaintiffs failed to demonstrate that they were at any special disadvantage vis à vis the ANZ. Nor did they demonstrate that any action of the ANZ involved any unconscientious use of any alleged superior position.

Misleading and deceptive conduct

The plaintiffs rely on sections 12DA and 12BB of the ASIC Act. The former prohibits the ANZ from engaging in conduct “in relation to financial services that is misleading or deceptive or is likely to mislead or deceive”. The latter provides assistance in proof to the plaintiff. To adapt the provision to this case it provides that if the ANZ “makes a representation about a future matter (including the doing of, or the refusing to do, any act) and the [ANZ] does not have reasonable grounds for making the representation, the representation is taken to be misleading.” If no evidence is adduced by the ANZ of those reasonable grounds then the issue is concluded against the ANZ.

The plaintiffs’ case depends on an acceptance of their claim that the various representations pleaded were made. I have rejected that any were made. The case must therefore fail.

However the case that I detect that the plaintiffs advance in their submissions is different to that pleaded. Mrs Rodgers contends that the plaintiffs would not have agreed to provide the guarantees and mortgages if Mr Blair had said to them at the time of the Letters of Offer: “At any time after you agree to transfer RFI’s lending facilities to ANZ from NAB, ANZ can take steps to appoint receivers and Managers to RFI because RFI is trading insolvent based on the information that you have provided to me.”^[130]

To put the case more compendiously I think that the point Mrs Rodgers wishes to make is this: ANZ claimed the right to exercise its rights under its securities because RFI was trading whilst insolvent. The financial position of RFI at the time the ANZ issued Notices of Demand, appointed receivers and managers, and called up its loans, was stronger than when it advanced monies to RFI in October 2001. Therefore if RFI was insolvent in May 2002 it was insolvent in October 2001.^[131] There was therefore an implicit representation that the ANZ accepted the risk presented by advancing monies to a company in the position that RFI was in. Implicitly it would not exercise its rights under the securities so long as the financial position did not deteriorate even though RFI may have been trading whilst insolvent on some tests. It therefore had a duty to inform the Rodgers, prior to advancing the monies, that it reserved its right to exercise its securities at any time even though RFI’s financial position may not have worsened. To remain silent in these circumstances was to engage in conduct that was misleading or deceptive as it led the Rodgers, they would say not unreasonably, to assume that RFI’s financial position was acceptable to the ANZ.

I mention the matter because, although not pleaded, a case along these lines lies at the heart of the complaints that the plaintiffs make.

It is plain that silence can amount to misleading or deceptive conduct even in the absence of any positive duty to reveal relevant facts.^[132]

There are several difficulties with this argument. First, as it was not pleaded, the defendant can legitimately argue that there may have been facts it would have led to counter the case. Secondly, there was no evidence led demonstrating that RFI was indeed in a stronger position in May 2002 compared with October 2001.^[133] Thirdly, the argument assumes that Mr Blair knew or should have known that RFI was trading whilst insolvent in October 2001. He plainly enough did not realise that. As to whether he should have known, that was never explored. Fourthly, any such assumption could not result in RFI not being bound by the covenants entered into upon the execution of the Letters of Offer. Thus a failure to keep within the limits of loans advanced still triggered default provisions. Finally, there remains the issue of establishing loss.

Has the Defendant Caused the Plaintiffs to Suffer Loss?

The foregoing conclusions are sufficient to dispose of the plaintiffs’ action. In case the proceedings go on appeal I will briefly address the remaining component of their case – that of loss.

Damages can be recovered for misleading and deceptive conduct only where the loss or damage has been suffered “by” the conduct done in contravention of the Act.^[134] So long as the contravening conduct is a cause of the loss (in the sense that it “materially contributes”) that is sufficient.^[135] I do not understand the test to be any different in negligence.^[136]

The general principle is that a plaintiff is to be put, so far as possible, in the position he or she would have been in if he or she had not acted on the misleading statement or advice.^[137]

For the purposes of the discussion I will assume that representations were made.

As the case advanced is one based on representations it is essential for the plaintiffs to establish that the representations were relied upon, and caused them to transfer the loans to the ANZ. The relevant principles were explained in Kenny & Good v MGICA 1992 Ltd:^[138]

“[A] person induced to enter a transaction by misrepresentations, generally speaking, must show that the losses claimed are related to the misrepresentation. It is not enough simply to show that the transaction was induced by the representation and the losses would not have occurred but for the transaction. The loss must flow directly from inducement. …

if the applicant would have entered into the relevant transaction, even if the misrepresentation had not been made, any losses flowing from the transaction as such cannot be said to flow directly from the inducement. In such a case the applicant would have been exposed, in any event to the precise risk that ultimately eventuated.”

The plaintiffs plead^[139] and submit that but for the conduct complained of they would not have entered into the transaction with the ANZ, they would have remained with the NAB, and the NAB would not have exercised their rights under the mortgages over the two properties. Given my findings that the Rodgers did enter into the transaction without the representations being made the test in Kenny cannot be satisfied. Of course a hypothetical reasonable person could hardly but be attracted and influenced by an offer of a loan with flexible limits to an amount $30,000 more than documented, and without security being required for an indefinite period up to six months while a developing and loss making business becomes profitable. So if the test in Kenny be applied to this reasonable person in the position of the plaintiff receiving these representations then the test would be satisfied.

There is a second problem. The loss claimed is the loss of the two properties sold by the ANZ. The plaintiffs’ hypothesis is that the properties would not have been sold had the transfers not occurred. They must demonstrate that that hypothesis is “more probable than competing hypotheses denying causation”.^[140]

No evidence was led from the NAB that they would not have taken the same action in the circumstances that prevailed during the months of February to June 2002. Mrs Rodgers’ argument seems to be that as the NAB had taken no action up until October 2001 and as the NAB had indicated through Mr Kirk, not long before the transfer, that it would maintain its current lending, then the inference should be drawn that the NAB would have taken no action in the events that subsequently transpired. Given that the conduct of the accounts at the ANZ included a failure to stay within terms of the loans, a need for urgent assistance in paying creditors outside the existing loans, and a need for assistance in paying personal credit card debts (indicating that the group as a whole was not strong) then it is impossible to draw the necessary inference. These were material changes in circumstance. It was incumbent on the plaintiffs to confront the issue directly by evidence. The fact that Mr Kirk was called and not asked about his willingness to support RFI in these changed circumstances leads to an inference against the proposition.^[141]

Crucial to the plaintiffs’ argument is the contention that had the transfer of the loans to the ANZ not occurred then they would have not attempted to support Wodda. Hence RFI would have survived as the NAB would not have cause to exercise its rights under its securities. One difficulty with that contention is that there is no evidence as to the amount of monies being diverted to Wodda nor is there evidence as to whether the monies that were being diverted to Wodda were of crucial significance to the ability of RFI to service its debts, either to the NAB or to its other creditors. Another is that the hypothesis requires acceptance of the premise that Mrs Rodgers would have “shelved” Wodda. Her every action was contrary to such a course.

There is a third problem. The plaintiffs plead that the actions of the ANZ brought about their “business failure”. Presumably what is meant by that is that the appointment of the Receivers and Managers to RFI and the subsequent closure of the business led to the consequent inability of RFI to meet its obligations, hence triggering the exercise of the ANZ’s rights under the mortgages and guarantees. The fallacy in that reasoning is that RFI’s inability to meet its obligations was not caused by the appointment of the Receivers and Managers. The converse is true. Mr Vincent has analysed the cause of RFI’s insolvency which analysis I accept, as it is inherently credible and the only evidence on the point.^[142]

Even had I accepted that the obligations imposed on the plaintiffs were as they contended, and not as set out in the Letters of Offer, the foregoing analysis remains valid. At its highest the plaintiffs’ case was that flexibility would be allowed for a six month period. Then the “final lending figure” would be determined. Inherent in this is that any moratorium on the exercise of the ANZ’s rights would not extend beyond the six months. The six month period expired on 5 April 2002. On the plaintiffs’ case the ANZ was then free to exercise its rights in accordance with its loan contract. The evidence is plain that RFI was insolvent at that time.^[143] Mrs Rodgers contests that finding but she does not explain why.^[144] I cannot see any basis for concluding otherwise. It is accepted by the plaintiffs that the ANZ was entitled to exercise its securities if RFI was insolvent. No agreement to set a final lending figure at the end of the six month period was said to take away that entitlement. No action was taken by the ANZ under its securities until May 2002 when Notices of Demand were sent and investigative accountants appointed. That was well after the claimed six month moratorium.

Assuming that the representations pleaded, and that were not disowned by Mrs Rodgers, were made, it is difficult to see what difference they make to the situation that prevailed come May 2002.

There is a fourth difficulty caused by the way in which the plaintiffs have pleaded their alleged loss. The claim is for the present day value of the properties or, as the defendant characterises the claim, the loss of the opportunity to benefit from the capital growth in the value of the properties. Implicit in that is the assumption that the Rodgers would have retained the properties to the present time. Assume in their favour that the NAB would not have foreclosed, or that the ANZ should not have foreclosed. No evidence was led of their capacity to meet all their obligations including the obligations inherent in owning these two properties over the intervening near seven years. The Rodgers assume that RFI and Wodda would have remained or become, as the case might be, profitable, and sufficiently profitable to meet those obligations. But they led no evidence on the point. As Brennan J (as he then was) observed in Sellars v Adelaide Petroleum NL:^[145]

“…a plaintiff who bears the onus of proving that a loss was caused by the conduct of the defendant discharges that onus by establishing a chain of causation that continues up to the point when there is a substantial prospect of acquiring the benefit sought by the plaintiff. Up to that point, the plaintiff must establish both the historical facts and any necessary hypothesis on the balance of probabilities. A constant standard of proof applies to the finding that a loss has been suffered and to the finding that that loss was caused by the defendant's conduct, whether those findings depend on evidence of historical facts or on evidence giving rise to competing hypotheses. In any event, the standard is proof on the balance of probabilities.”

No evidence was led of the business prospects of either company or of why it is more probable than not that they would have prospered from May 2002 to the present. Given the defaults that occurred in respect of the ANZ accounts the probabilities seem strongly against that proposition.

Quantum

No evidence was led of the present day value of the properties. I am therefore not able to assess damages, at least on the basis of the loss pleaded.

Conclusion

In the light of my findings it is not necessary to address the issue of estoppel and the question of whether the proceedings are to any extent statute barred.

The plaintiffs’ claim is dismissed with costs.

Footnotes

[1] Paragraph 14 of the Further Amended Statement of Claim.

[2] T2-21/1-15.

[3] Affidavit Mrs Rodgers Exhibit 5 at para 16 p 6.

[4] The evidence here is not entirely clear. Mrs Rodgers said that she was involved in an “intimate relationship” with her NAB bank manager until May 2002 and unbeknownst to the senior NAB management at the time. See Mr Kirk’s diary note of 15 November 2002 – Exhibit 24. The better view seems to me to be that she operated the accounts in excess of their limits with her local manager’s knowledge but not with the knowledge his superior, Mr Kirk of the Brisbane office. Mr Kirk’s evidence was that there was no authority to operate in excess of limits.

[5] Exhibit 11.

[6] T2-32/57 – 33/7.

[7] On the 4th October 2001, the day prior to the execution of the Letters of Offer, the NAB set out in a letter to the ANZ the current state of the existing loan facilities. The total was then $418,755 see eg RR-30 to Exhibit 5. I ignore the Web Publishing debt. Mr Blair considered that he was refinancing $398,000 of existing debt – see para 120 of Exhibit 26.

[8] The Rodgers contend that the unavailability of “merchant facilities” for Wodda made it unworkable for them to transfer their trading accounts.

[9] See Exhibit 35 p 61. There had been a similar request in respect of the January account.

[10] See pp 20-40 of exhibits to Exhibit 35

[11] Exhibit 35 para 7.

[12] Exhibit 35 p 72.

[13] Exhibit 38 p 71.

[14] Exhibit 38 at PGA4 at p 73

[15] Exhibit 34 paragraphs 3-10, and MJV-1.

[16] Exhibit 38 PGA6 p 77 and see the summary findings pp 92-93.

[17] S352 of 2002 – Exhibit 12, Volume 3 of Tab 17.

[18] Rodgers Family Investments Pty Ltd v ANZ Banking Group Ltd & Ors [2003] QCA 216.

[19] S7655 of 2002.

[20] See Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589.

[21] Exhibit 12 Tab 8 - ANZ Banking Group Ltd v Rodgers and Anor [2004] QCA 186. Mr and Mrs Rodgers applied to the High Court of Australia seeking special leave to appeal from the judgment and order of the Court of Appeal. That application was dismissed on 26 May 2005.

[22] (1939) 62 CLR 464 at 531-533

[23] Rodgers v ANZ Banking Group Ltd [2006] QSC 190 at [30]-[35].

[24] Exhibit 5 para 60.

[25] Para 16(c)(vii) of the Further Amended Statement of Claim

[26] It is not easy to follow the logic of the pleading. The representations appear under various headings in various places. I have endeavoured to collect and summarise the representations that emerge from the pleading.

[27] Para 14 of the Further Amended Statement of Claim but described there as being “understood”.

[28] That is my understanding of the intent behind paragraph 16(a) of the Further Amended Statement of Claim.

[29] Paragraphs (c) to (h) summarise what seems to be the relevant portions of paragraph 16(b) of the Further Amended Statement of Claim.

[30] Further Amended Statement of Claim para 16(d)(iii).

[31] Paras (j) to (l) reflect Paras 16(c) and 17(a)-(c) of the Further Amended Statement of Claim.

[32] Para 17(e) of the Further Amended Statement of Claim.

[33] Para 17(f) of the Further Amended Statement of Claim.

[34] Exhibit 5 pp 80-107 of exhibits attached.

[35] T3-48/43.

[36] Para 16(d)(iv) of the Further Amended Statement of Claim

[37] See [16] above for the position at 21 February 2002

[38] Paras 14, 16(b)(i) and (ii), 17(d) and 22 of the Further Amended Statement of Claim.

[39] I am conscious that this leniency must be kept within the bounds stated – the plaintiffs have attempted to introduce evidence and allegations in the course of their written submissions that are irrelevant to the issues pleaded and of which the defendant has had no prior notice. I have ignored these.

[40] The transcript will not reflect the long pauses that occurred and in response to questions where one would not expect such difficulty.

[41] For example Mr Rodgers gave evidence before Muir J of being present when Mr Nagle made statements to Mrs Rodgers concerning the arrangements with Mr Blair. Now both Mr and Mrs Rodgers attest that he was not there when those statements were made.

[42] In this case the observation of Lord Pearce: ‘…that with every day that passes the memory becomes fainter and the imagination becomes more active…” is apt: Onassis & Calogeropoulis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431. I am indebted to White AJA for the reference – see ACN 070 037 599 P/L & Anor v Larvik P/L & Anor [2008] QCA 416 at [6].

[43] T3-35-36.

[44] See plaintiffs’ submissions of 23 March 2009 p 9.

[45] To understand that comment see the judgment of Muir J where the evidence that is largely before me was analysed extensively by him.

[46] Exhibit 26 at para 41.

[47] T4-187/1-18.

[48] Exhibit 38 paras 45-52. Mr Blair asserts that he accurately completed the risk grade work sheet – Exhibit 26 para 55-69; and correctly assessed the risk rating – Exhibit 26 para 81.

[49] Exhibit 5 para 91. See also Exhibit 6 para 10. Mr Blair denies the claim: Exhibit 26 para 148; Exhibit 27 paras 2-3.

[50] Ms Downes SC has drawn my attention to National Australia Bank v Meeke [2007] WASC 11 at [460] per Jenkins J and a comment to this effect.

[51] Para 16 (c) (vi) of the Further Amended Statement of Claim.

[52] But not necessarily actionable – reliance, causation and damage are all in issue

[53] Para 16(c) (v) of the Further Amended Statement of Claim.

[54] Exhibit 23.

[55] T1-77/25 and see Mr Kirk’s diary note at Exhibit 13 Tab 88 and Exhibit 22.

[56] Exhibit 26 paras 24-27.

[57] Exhibit 26 paras 164-166.

[58] Exhibit 5 para 104.

[59] Exhibit 26 para 167-168; see the diary note at CPB-35.

[60] T1-100

[61] Exhibit 26 paras 167, 168, 172-173; CPB-35.

[62] RR-I to Exhibit 5.

[63] RR-2 to Exhibit 5.

[64] T3-45/25-35

[65] Exhibit 26 p 36; see CPB-6.

[66] T3-39/1-5; Exhibit 26 paras 73-74.

[67] The matter is complicated by the fact that some pieces of evidence indicate that the ANZ was not taking over all debts. For the purposes of the argument I assume that it was.

[68] A newspaper clipping speaks of nearly $2M – RR24 to Exhibit 5 p 52. In March 2000 Mrs Rodgers claims that she agreed to sell a 14% interest in Wodda for approximately $1.5M – Exhibit 5 para 33.

[69] I am conscious of the account in her affidavit that she thought of shelving Wodda “for a period” (Exhibit 5 para 81) but her sworn testimony in cross-examination (T2-18/1-8) was to the contrary.

[70] T1-101/5-25; see also 1-108/15

[71] The transcript mistakenly records “deposed” and I have substituted “opposed”.

[72] The transcript records the answer as being that of Ms Downes but it was that of Mrs Rodgers: see T1-102/58

[73] T1-102/50-103/16; see also 1-108/10-22; 2-44/10; 5-51/60- 52/1-2

[74] See especially para 22(b) of the particulars dated 26 February 2007 [document 119 of the file]

[75] T2-41/30 – 43/30. It is not irrelevant that in the Court of Appeal in May 2003 Mrs Rodgers gave another version of what she meant by “flexibility” - she spoke of “needing the flexibility that I had over at the National Australia Bank where I can go over if I want to." (See Exhibit 12 Vol 3 Tab 20 p 7/55; T4-186/5). There was no evidence this was ever said to Mr Blair nor that Mr Blair said this to Mrs Rodgers.

[76] T1-98/11-14; T4-187/1-18.

[77] T1-99/1-9

[78] At one point Mrs Rodgers asserted that Mr Blair said recourse to the enforcement of securities would be a “last resort” (T1-98/15). This emerged for the first time in cross-examination. It had all the hallmarks of Mrs Rodgers’ inventing the conversation to meet the point of the attack. I note that Mr Blair had used that phrase when describing the approval process to Muir J – Exhibit 9 at Ex RR-1 p 13 (T-44/46) and Mrs Rodgers was aware of that – see her submission of 13 March 2009 para 40.

[79] T2-46/20-30

[80] Exhibit 12 Vol 3 Tab 20 p 7/50.

[81] Commencing at [87] and particularly [90].

[82] The most obvious examples being the facsimile letter of 19 March 2002 which speaks of “the plan to bring our accounts back into order” (Attachments to Exhibit 35 p 9; Ex RR81 p 273-274 of attachments to Exhibit 5) and an undated letter to Mr Ashe where Mrs Rodgers referred to the initial contact with Cameron Blair, that “the loans were approved and the funds transferred to the National Australia Bank” and then to a personal debt being added to an account “causing our account to exceed the limit of $25,000.00”: Exhibit 38 p 205

[83] For example see letters of 2 July 2002, 12 July 2002, an undated letter, and one of 16 July 2002 pp 179, 202, 205 and 211 respectively of the exhibits to Exhibit 38 (PGA-8).

[84] There is a claim that Mr Nagel was told. He met the Rodgers on 22 January 2002. He is now deceased but denied the claim in affidavits filed and evidence given in the proceedings before Muir J.

[85] Para 54 of submissions dated 13 March 2009.

[86] Exhibit 5 paras 75-86.

[87] In various exhibits – see RR-39 of Exhibit 5. I do not think it relevant but I doubt that the letter was received so late – see Exhibit 13 Tab 76.

[88] Mrs Rodgers swore that the decision was made on the morning of the execution of the Letters of Offer or the day before: Exhibit 5 para 82 – but contemporaneous documents indicate the decision was taken well before. See the diary note of 11 September 2001: Exhibit 13 Tab 76; letter of the Rodgers of 26 September 2001: Exhibit 13 Tab 78. Mr Blair’s account is far more credible: Exhibit 26 paras 102 -113.

[89] T2-42/5 – there was no discussion about the $419,000 figure

[90] See CPB-3 to Exhibit 26 p 10. The credit risk was graded CCR5 and his limit was $750,000.

[91] at [39], [42], [65], [66], [68] and [70] above

[92] Exhibit 29. See Exhibit 26 para 30 - cash flow projections supplied by the plaintiffs indicating Wodda would be cash flow positive in 3 to 8 months.

[93] (1948) 76 CLR 646; see also Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 at [45].

[94] Ibid at 649.

[95] I refer to the letter of 26 June 2002 at RR-2 of Exhibit 5.

[96] Exhibit 39.

[97] More accurately re-introduce, as the original pleading had contained the allegation but it had been deleted following Dutney J’s judgment.

[98] T4-181/15-35.

[99] Exhibit 12.

[100] Exhibit 12 Vol 1 at AR 508 para 19-40.

[101] CPB -12 to Affidavit of Blair Exhibit 26.

[102] CPB-13 to Affidavit of Blair Exhibit 26.

[103] See foot of p 4 of the diary note of 25 September 2001 – CPB-6 to Exhibit 26.

[104] Save for the insertion of a date – see Exhibit 12 Vol 1 at AR 262/25-60.

[105] It is common ground that the plaintiffs could not have seen the documents before 5 October.

[106] Exhibit 12 Vol 2 p 1454.

[107] [1993] 1 Qd R 135 at 139-140 per Macrossan CJ; at 144 per de Jersey J; and assumed by Dowsett J at 145. See also Cornish v Midland Bank PLC [1985] 3 All ER 513

[108] (1986) 162 CLR 340 at 372: “First … if the representor realises or ought to realise that the representee will trust in his especial competence to give that information or advice; second … if it would be reasonable for the representee to accept and rely on that information or advice; and third … if it is reasonably foreseeable that the representee is likely to suffer loss should the information turn out to be incorrect or the advice turn out to be unsound.” See also Esanda Finance Corporation Ltd v Peat Marwick Hungerford (1995-1997) 188 CLR 241 at 250, per Brennan CJ, at 257 per Dawson J and at 262 per Toohey and Gaudron JJ.

[109] Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 447 per Mason J at 461. See also Australia and New Zealand Banking Group v Karam & Ors (2005) 64 NSWLR 149 at 161-162.

[110] [2007] QCA 74 at [8] per Keane JA.

[111] (1983) 151 CLR 447 per Mason J at 462

[112] At least so far as the amounts in the Letters of Offer are concerned.

[113] (1983) 151 CLR 447 per Deane J at 474.

[114] Paras 50-55 of submission of 13 March 2009.

[115] Rodgers Family Investments Pty Ltd v ANZ Bank & Anor [2002] QSC 282 at [9]

[116] Exhibit 35 pp 9-10 of attachments.

[117] Exhibit 35 p 61 of attachments.

[118] Exhibit 38 p 71 of the attachments.

[119] A diary note of which appears at PGA-4 at p 73 of attachments to Exhibit 38. I am confident that Mr Ashe’s contemporaneous note is the best guide to the conversation held.

[120] The investigative accountants reported that the arrears as at 8 May 2002 were $26,060.21 on loan accounts and the overdraft limit was exceeded by $27,672 – Exhibit 28 attachment JRP-3 p 8 para 8.

[121] Exhibit 28 para 19.

[122] Exhibit 28 attachment JRP-3 p 8 para 9.

[123] p 14 of JRP -3.

[124] Exhibit 28 attachment JRP-8 and Exhibit 30 PJV-1 para 7.78.

[125] Exhibit 28 attachment JRP-3 pp 8 and 14.

[126] Exhibit 30 at p 230 of attachments - $2,985 (ATO) and $1,707 (Telstra) difference.

[127] See Mr Vincent’s summary at p 230 of his report; Exhibit 30 and T4-88/15.

[128] Exhibit 15 para 7.

[129] Mr Thew’s statutory declaration (Exhibit 20) is not based on the necessary premise adopted here.

[130] Para 46 of Mrs Rodgers’ submissions of 13 March 2009.

[131] In truth Mrs Rodgers puts the argument the other way around – no bank would lend to a customer that was insolvent, therefore RFI was solvent in October 2001. It was in a better position in May 2002. Therefore RFI was not insolvent when the ANZ exercised its rights. The fallacy is that Mrs Rodgers equates an existing fact with Mr Blair’s recognition of that fact. I have reversed the reasoning as I cannot see where this point goes as presented, save perhaps to argue that the ANZ did not have the right to exercise its securities which is an argument precluded by the decision of Muir J.

[132] See Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 at 88; Winterton Construction Pty Ltd v Hambros Australia Ltd (1992) 39 FCR 97

[133] Mr Vincent’s evidence is to the contrary – see his summary at p79 of his report PJV-1 to Exhibit 30 showing a $126,000 deterioration in the net asset position between June 2000 and June 2001 (based on draft financial statements) and operating losses of $40,952 to 17 May 2002 on trial balances (p76). The investigative accountants also spoke of a projected erosion of cash over the next six months from April 2002 – see [24](h) above.

[134] S 12GF and 12GM ASIC Act

[135] Henville v Walker (2001) 206 CLR 459 per Gaudron J at [61]; per Mc Hugh J at [106] ; I & L Securities v HTW Valuers (2002) 210 CLR 109 at 128 [57]

[136] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525

[137] Toteff v Antonas (1952) 87 CLR 647 at 650; Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 539 per Brennan J; Potts v Miller (1940) 64 CLR 282 at 297 per Dixon J; Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413, 424, 454‑455

[138] (1997) 147 ALR 568 at 588,589 per Wilcox, Branson and Sackville JJ.

[139] Either expressly or implicitly - see paras 12 and 26 of the Further Amended Statement of Claim.

[140] Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 367-368 per Brennan J (as he then was).

[141] Whilst it may seem hard to fix self represented litigants with the forensic duty to ask relevant questions I point out that both Dutney J and myself indicated in the course of interlocutory judgments that the possible actions of the NAB were a potential difficulty for the plaintiffs.

[142] Exhibit 30 PJV-1 para 2.5 and his rejection of the plaintiffs’ argument at para 2.6.

[143] See Mr Vincent’s summary at para 2.0 of his report Exhibit 30 PJV-1.

[144] The list of factors at para 40 of her submission of 13 March 2009 seems, with respect, to be irrelevant to the issue.

[145] (1994) 179 CLR 332 at 333.

Editorial Notes

Published Case Name:
Rodgers and Anor v Australia and New Zealand Banking Group Limited
Shortened Case Name:
Rodgers v Australia and New Zealand Banking Group Limited
MNC:
[2009] QSC 86
Court:
QSC
Judge(s):
McMeekin J
Date:
07 May 2009

Appeal Status

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
ACN 070 037 599 Pty Ltd v Larvik Pty Ltd	[2008] QCA 416	1 citation Jump To Cite 1 - [2008] QCA 416
ANZ Banking Group Ltd v Rodgers	[2004] QCA 186	2 citations Jump To Cite 1 - [2004] QCA 186 Cite 2 - [2004] QCA 186
Australia & New Zealand Banking Group v Karam	View on:NSWLR(2005) 64 NSWLR 149	1 citation Jump To Cite 1 - (2005) 64 NSWLR 149
Blair v Curran	View on:JADE(1939) 62 C.L.R., 464	2 citations Jump To Cite 1 - (1939) 62 C.L.R., 464 Cite 2 - (1939) 62 C.L.R., 464
Commercial Bank of Australia Ltd v Amadio	View on:JADE(1983) 151 CLR 447	3 citations Jump To Cite 1 - (1983) 151 CLR 447 Cite 2 - (1983) 151 CLR 447 Cite 3 - (1983) 151 CLR 447
Commercial Bank of Australia Ltd v Amadio	View on:JADE(1982) 151 CLR 447	1 citation Jump To Cite 1 - (1982) 151 CLR 447
Commonwealth Bank of Australia v Mehta	View on:NSWLR(1991) 23 NSWLR 84	1 citation Jump To Cite 1 - (1991) 23 NSWLR 84
Cornish v Midland Bank PLC	(1985) 3 All E.R. 513	1 citation Jump To Cite 1 - (1985) 3 All E.R. 513
Esanda Finance Corporation Ltd v Peat Marwick Hungerford	View on:JADE(1995-1997) 188 CLR 241	1 citation Jump To Cite 1 - (1995-1997) 188 CLR 241
Henville v Walker	View on:JADE(2001) 206 CLR 459	1 citation Jump To Cite 1 - (2001) 206 CLR 459
I & L Securities Pty Ltd v HT W Valuers (Brisbane) Pty Ltd	View on:JADE(2002) 210 CLR 109	1 citation Jump To Cite 1 - (2002) 210 CLR 109
Kenny & Good Pty Ltd v MGICA	(1997) 147 ALR 568	1 citation Jump To Cite 1 - (1997) 147 ALR 568
Kenny & Good Pty Ltd v MGICA	View on:JADE(1999) 199 C.L.R. 413	2 citations Jump To Cite 1 - (1999) 199 C.L.R. 413 Cite 2 - (1999) 199 C.L.R. 413
March v E & MH Stramare Pty Ltd	View on:JADE(1991) 171 CLR 506	2 citations Jump To Cite 1 - (1991) 171 CLR 506 Cite 2 - (1991) 171 CLR 506
Mitchell v Pacific Dawn Pty Ltd	[2007] QCA 74	2 citations Jump To Cite 1 - [2007] QCA 74 Cite 2 - [2007] QCA 74
National Australia Bank v Meeke	View on:JADE[2007] WASC 11	1 citation Jump To Cite 1 - [2007] WASC 11
Onassis and Calogeropoulos v Vergottis	[1968] 2 Lloyd's Rep 403	1 citation Jump To Cite 1 - [1968] 2 Lloyd's Rep 403
Port of Melbourne Authority v Anshun Pty Ltd	View on:JADE(1981) 147 CLR 589	2 citations Jump To Cite 1 - (1981) 147 CLR 589 Cite 2 - (1981) 147 CLR 589
Potts v Miller	View on:JADE(1940) 64 CLR 282	1 citation Jump To Cite 1 - (1940) 64 CLR 282
Potts v Westpac Banking Corporation	[1993] 1 Qd R 135	1 citation Jump To Cite 1 - [1993] 1 Qd R 135
Potts v Westpac Banking Corporation	[1993] Qd R 135	1 citation Jump To Cite 1 - [1993] Qd R 135
Rodgers Family Investments Pty Ltd v ANZ Banking Group Ltd	[2003] QCA 216	2 citations Jump To Cite 1 - [2003] QCA 216 Cite 2 - [2003] QCA 216
Rodgers Family Investments Pty Ltd v Australia and New Zealand Banking Group Ltd	[2002] QSC 282	2 citations Jump To Cite 1 - [2002] QSC 282 Cite 2 - [2002] QSC 282
Rodgers v ANZ Banking Group Ltd	[2006] QSC 190	2 citations Jump To Cite 1 - [2006] QSC 190 Cite 2 - [2006] QSC 190
San Sebastian Pty Ltd v The Minister	View on:JADE(1986) 162 CLR 340	2 citations Jump To Cite 1 - (1986) 162 CLR 340 Cite 2 - (1986) 162 CLR 340
Sellars v Adelaide Petroleum NL	View on:JADE(1994) 179 CLR 332	3 citations Jump To Cite 1 - (1994) 179 CLR 332 Cite 2 - (1994) 179 CLR 332 Cite 3 - (1994) 179 CLR 332
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd	View on:JADE(2004) 219 CLR 165	1 citation Jump To Cite 1 - (2004) 219 CLR 165
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd	View on:JADE(2004) HCA 52	1 citation Jump To Cite 1 - (2004) HCA 52
Toteff v Antonas	View on:JADE(1952) 87 CLR 647	1 citation Jump To Cite 1 - (1952) 87 CLR 647
Wardley Australia Ltd v Western Australia	View on:JADE(1992) 175 CLR 514	2 citations Jump To Cite 1 - (1992) 175 CLR 514 Cite 2 - (1992) 175 CLR 514
Wilton v Farnworth	View on:JADE(1948) 76 CLR 646	1 citation Jump To Cite 1 - (1948) 76 CLR 646
Winterton Construction Pty Ltd v Hambros Australia Ltd	(1992) 39 FCR 97	2 citations Jump To Cite 1 - (1992) 39 FCR 97 Cite 2 - (1992) 39 FCR 97

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Rodgers v Australia and New Zealand Banking Group Limited[2009] QSC 86