Battenberg v Michell Sillar

[2003] NSWSC 308

CITATION:	Battenberg v Michell Sillar [2003] NSWSC 308
HEARING DATE(S):	24/03/2003 - 03/04/2003
JUDGMENT DATE:	16 April 2003
JURISDICTION:	Common Law
JUDGMENT OF:	Michael Grove J at 1
DECISION:	Judgment for the Third to Eighth Defendants
CATCHWORDS:	SOLICITORS - ALLEGED NEGLIGENCE AND BREACH OF RETAINER - FACTUAL DISPUTE - CREDIBILITY - NO SPECIAL POINT OF PRINCIPLE
PARTIES :	ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG v MICHELL SILLAR
FILE NUMBER(S):	SC 20271/97
COUNSEL:	G., Cusack QC with J. Spencer and M. Crowley (Plaintiff) M. McCulloch (3-8 Defendants)
SOLICITORS:	Russo and Partners (Plaintiff) Minter Ellison (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MICHAEL GROVE J

Wednesday 16 April 2003

20271/97 ANDREW CHARLES ROBERT EDWARD ALBERT BATTENBERG v MICHELL SILLAR

JUDGMENT

1 HIS HONOUR: The hearing of this action involved claims by the plaintiff against partners in a firm of solicitors practising as Michell Sillar. Claims by him against other defendants originally joined in the action were resolved and it will be convenient to refer to the firm as “the defendant”.

DAMAGES

2 Conventional directions were given for the filing of evidence by affidavit prior to hearing. The plaintiff filed affidavits by a Mr Wykes and a Mr Clout, which dealt with what could be categorized as generalities. A third affidavit by an accountant, Mr Sutherland, was filed with them on 13 February 2001. Unsurprisingly, having regard to its form and content, it was not sought that this affidavit be read. On the sixth day of hearing the plaintiff sought and was given leave to file in court a further affidavit sworn by Mr Sutherland on the preceding day but, for reasons then given, I upheld objection to the content of it which, on the issue of damage, consisted of a sheet of figures totalling a little under $3.5 million signed by the plaintiff and a covering letter from Mr Sutherland observing that quantum cannot be confirmed and referring to determination “when all the facts are disclosed”. A calculation, under a heading, reading in part, “Report on Personal Injury Damages” would seem to be a projection of a hypothetical total income loss for twenty seven years commencing from 1995 and calculated at that point.

3 This abbreviated record is to note that I did not determine whether the plaintiff might have leave to reopen his case to present acceptable evidence of damage. Nor did I make an order for the separate trial of the issue of liability but I directed that the hearing continue on the basis that, should the plaintiff fail on liability, there would obviously be no reason to refrain from entry of judgment but that, should he succeed, I could, on further hearing the parties, give consideration to a foreshadowed application for leave to adduce appropriate evidence.

CAUSE OF ACTION

4 By his Amended Statement of Claim filed on 25 February 2000 the plaintiff claimed that the defendant was negligent or in breach of retainer in a number of respects in what might broadly be described as advising in connection with financial dealings and, arising out of the same facts, loss as a result of conduct by the defendant in contravention of the Trade Practices Act and the Fair Trading Act.

5 The plaintiff pleaded that the retainer derived from representations made on or about 3 January 1995 by Lois Snelling, a solicitor in the employ of the defendant, and instructions on or about 25 January 1995, accepted by the defendant, to advise the plaintiff on the management of his debt to the National Australia Bank (the Bank or the NAB) and his guarantee to the Bank of the indebtedness of a company, Craigstown Pty Limited, and to obtain finance to enable the plaintiff to refinance his debt to the Bank and complete the purchase of a property called Darjeeling.

6 Retainer in those terms at that time or any other time is denied by the defendant. In order to resolve this dispute, which is necessarily fundamental to any claim by the plaintiff, some scattered circumstances need to be considered and their links if any, ascertained. The plaintiff also sued upon various allegedly negligent misrepresentations made by Ms Snelling in the course of their dealings.

THE PLAINTIFF’S PREDICAMENT

7 Although reluctant while giving oral evidence to use the word, the plaintiff in 1996 described himself as being in a predicament as at early 1995. He was, I find, in such a predicament, and it arose at least in part out of these facts. In 1994 the plaintiff had obtained a Bill facility from the NAB to a limit of half a million dollars, secured by first mortgage on a property at Leura called Highlands. The facility was apparently drawn to or near its limit and in October 1994 the Bank further provided overdraft accommodation of $55,000.00 for the deposit on the purchase of Darjeeling, another house in Leura. The contract for this purchase included a term for delayed settlement in April 1995. In November 1994, Highlands failed to sell at auction nor was it sold by private treaty.

8 In October 1994 the plaintiff had written to the Bank estimating $100,000.00 as likely proceeds of the auction of the contents of Highlands. Two letters from the Bank dated 28 December 1994 refer to overdraft limits of the plaintiff at $35,100.00 and of Craigstown Pty Limited at $50,000.00 (guaranteed by the plaintiff), both requiring full clearance by 28 February 1995. It can be deduced from correspondence that a clearance of the contents of Highlands did not realise $100,000.00 although there is no direct evidence of the proceeds of any such sale. Nor is there any evidence of current funds except I note mention of a $50,000.00 borrowing from the plaintiff’s mother to meet day to day living expenses as at April 1995.

9 I am satisfied that, as at early 1995, the plaintiff was aware of his being in a financial predicament. I reject his testimony to the effect that he had confidence that, upon request, the Bank would continue to and even further extend accommodation if he sought it.

10 There is no coherent analysis of the plaintiff’s finances in the evidence, however, in reaching the findings just stated I have had regard to scraps of information, the obscurities of which vary in scale. The plaintiff had an insolvency practice and was from time to time appointed as a company liquidator. His business and, I gather, some of his personal affairs were conducted through Craigstown Pty Limited. There is mention of partnership in an accountancy practice but no detail about it. There are NAB bank statements for Craigstown Pty Limited from August 1994 to February 1995 which show deposits of cash and cheques and mixtures of both, the sources of which were not examined. In the period covered by the bank statements the account moved from a little over $21,000.00 in credit to a little over $52,000.00 in debit. During the relevant period the bank bill which I have mentioned either needed to be rolled over (at the cost of pre paid interest) or paid out.

11 Despite calls for records more up to date, the plaintiff produced only personal income tax returns for the years ending June 1992 and June 1993. The former showed a taxable income of $40,186.00, the latter a loss of $47,883.00. The document shows this loss to result from the debit of a management service fee of $83,470.00 against income of $35,587.00. Some extracts of the accounts of Craigstown Pty Limited were produced and income tax returns for that company for the period 25 May 1992 to 30 June 1992 and the year ending 3 June 1993. These documents cast little light on any issue and particularly not on the plaintiff’s claims of damage.

12 I have not ignored the circumstance, apparently common ground, that a later bankruptcy of the plaintiff was annulled and I infer that the plaintiff had a capacity to obtain funds from somewhere. He gave evidence that he had received an inheritance and there is a suggestion of source of funds in the cryptic content of Exhibit C which is a copy of a letter dated 6 September 2002 from Pemberton Greenish, a firm of English solicitors. It is addressed to Mr Fabian, and a named company about which I have no information. The letter refers to the benefit of a trust available to the plaintiff and his mother. It also mentions Ethersay House which is an address in the Southern Highlands given as the address of the plaintiff, his mother and Mr Fabian.

13 This somewhat vague information does not undermine my satisfaction that at the relevant time the plaintiff was conscious that immediately available funds would not enable him to meet anticipated financial commitments as they fell due.

JANUARY 1995 – DINNER PARTY AND ALLEGED RETAINER

14 An informal dinner took place at Darjeeling at which the plaintiff, his mother, Ms Anne Redwood and Ms Lois Snelling were present. As noted in the reference to the pleading above, the plaintiff claims that a critical offer was made to him by Ms Snelling on this occasion.

15 The first matter of contention is when the dinner took place. The plaintiff says that it was Tuesday 3 January and an affidavit by his mother specifies the same date. Ms Snelling says that it was in the middle of January and Ms Redwood referred in a verified statement to late January, but in cross examination she conceded that it could have been the 3rd. As I will later recount, there was some contact between the plaintiff and Ms Snelling on 25 January (although the nature of the contact is in dispute) and a lapse of time from 3rd to 25th if the offer claimed by the plaintiff to have been made on the earlier date was made, would seem surprising but it is not necessary to establish the exact date of the dinner party.

16 The plaintiff’s version is that on the occasion there was mention of the failure of Highlands to sell at auction whereupon Ms Snelling suggested that it be operated as a bed and breakfast or a guesthouse. According to him, she continued:

“My firm can organize you finance to do this – they’re wanting to develop closer relationships with a bank; and our managing partner, Brian Olliver, is on good terms with St George. We also have our own mortgage brokers at the office called Balmain Partners who we use as a means of providing funds to our clients as well as a way of investing our clients’ funds. They would certainly be able to give you a much better rate. What facilities do you have, and what rates are you paying?”

17 The plaintiff summarized his indebtedness and there was further conversation including a confirmation by Ms Snelling that she could get a “better rate” than was being paid to the NAB and that she could organize a change of banks in a couple of days after she returned from holidays.

18 In evidence, he maintained that he perceived that an offer was being made to him (of legal services by a solicitor seeking to acquire a client) which he later accepted on a visit to her office at Parramatta on 25 January. His testimony in chief included specification that on that date he “gave Lois my original instructions”. His evidence about this was express and included:

“Q. What did you say to her?
A. I said, ‘Lois, I do require you, if you would provide me with the funding to pay out the NAB Bank, to provide me with the funding for the purchase of Darjeeling.’ I also advised her --
Q. When you advised her, what did you say to her?
A. I said, ‘I have a car lease, and that will need to be transferred because it is secured on the Highlands.’
Q. What was her reply to that?
A. I also gave her further instructions. I also required her to organise my insolvency practice with the same banking arrangements that I had with the NAB Bank. I was rolling in conditions with what Lois had told me earlier, I’m rolling my bank bills for one month to the 28th February, so I therefore require this all to be in place by then.
I said, ‘In addition, I also require you to contact the Office of State Revenue regarding a deferral of the stamp duty payable on the purchase of Darjeeling.’ Lois Snelling said to me, yes, she will do that. There will be no problem with that whatsoever. ……… “

19 Other witnesses were somewhat contradictory of the plaintiff’s detail that an offer of legal services (or the like) was made at the dinner party. An affidavit by his mother verified a statement in which she recalled general discussion of the failure to sell Highlands and the poor relationship between the plaintiff and a bank manager, Mr Dugar. Asked for detail Mrs Lee said Ms Snelling had said “she had connections she felt she could give him a better deal”. After this testimony the entire balance of her evidence is contained in the following extract of the transcript of hearing:

“CUSACK: Q. Did she say anything further to that, that you can recall, the substance? When you talk about a better deal, what was she talking about?
A. Yes.
Q. Did she say any more to the substance than that?
A. Yes, she – would he agree to – if she made inquiries for him.
Q. Yes. And what was the substance of your son’s reply to that, can you recall?
A. Yes. He would be interested.
Q. Yes. And was there anything – the substance of any further conversation about that subject between your son and Lois Snelling, that you can recall?
A. No, that was the main.
NO CROSS EXAMINATION.”

20 Ms Redwood also verified a statement which, after referring to the dinner party and the mention of “personality clash” with Mr Dugar, continued:

“A further discussion took place between all four people at the party and Lois Snelling advised Andrew Lee that she could arrange an appointment for him with a firm of finance brokers who had offices on the same floor of the office building in which Michell Sillar had their office. I do not recall Ms Snelling, or anyone else discussing comparative interest rates, or whether or not the finance brokers would be able to arrange a loan at any particular rate of interest, or with any particular conditions.
I recall Ms Snelling said that Michell Sillar did not provide mortgage funds but that she understood the finance broker, Balmain Partners was able to assist people who had problems with obtaining finance from regular sources.”

21 Ms Snelling deposed that the conversation turned to the plaintiff having moved into Darjeeling (at which location they were dining) under licence although Highlands had not been sold. Absence of finance to complete the purchase was mentioned and the difficulty being encountered with the bank manager. In answer to inquiry, she said that she had experience of clients who were unable to make satisfactory arrangements with their banks in these terms:

“Michell Sillar is not a source of finance, but I have sent a client to finance brokers named Balmain Partners, who happen to be tenants on the same floor as Michell Sillar in our building, although there is no relationship between the two firms. The client was satisfied. I can introduce you to someone at Balmain Partners, if you would like to try that possibility.”

22 Her affidavit continued:

“15. Andrew Lee said he would like to do so. I made no comment as to the availability of finance or interest rates on loans obtained through Balmain Partners, as I had no knowledge of the current rates. Although I was aware that the client that I had recently referred to Balmain Partners was satisfied with the interest rate found for her and I may have mentioned this.
16. I did not offer that I or Michell Sillar would act for Andrew Lee, but he said words to the effect:
‘I am well represented in legal matters by the firm of Corrs Westgarth’.
17. At no time have I told Andrew Lee that Balmain Partners, or Michell Sillar would provide him with finance. It was my intention that after introducing Andrew Lee to Balmain Partners, I would have no further involvement with his affairs. It was my belief that Corrs Westgarth were acting for Andrew Lee on the sale of the Highlands, and the purchase of Darjeeling, and there would be no further input required from me after I introduced him to Balmain Partners.”

23 The plaintiff did not dispute that he had given instructions to Corrs Chambers Westgarth, solicitors, inter alia, to act on the purchase of Darjeeling and the anticipated sale of Highlands.

24 Not only did Ms Snelling deny making an offer to provide legal services to the plaintiff at the dinner party (or at all in January 1995) she denied any meeting with the plaintiff personally on 25 January and consequently denied the then receipt of documents which he described in his evidence, or the acceptance of instructions from him. The direct collision between the versions of the plaintiff and Ms Snelling invites determination of the respective credibilities. I reject the version of the plaintiff and prefer that of Ms Snelling, significantly supported, as I find it to be, by Ms Redwood and Mrs Lee as to the happenings at the dinner party which was an occasion of the presence of persons other than the contestants.

25 If the plaintiff’s version of the events of 3 January (or whatever is the correct date of the dinner party) is rejected, his description of the events of 25 January as a logical sequence ought also be rejected. I do reject his description and will later turn to another reason for preference of Ms Snelling’s evidence.

26 In a practical sense, those findings could dispose of the action as the plaintiff cannot succeed unless there was a retainer and/or representations at least substantially in the terms to which he testified. It is however apt to record my consideration of the details of some disputes and subsequent events, my findings on which fortify my rejection of the plaintiff as a credible witness.

MS SNELLING’S OFFER

27 As undisputed, Ms Snelling did offer to introduce the plaintiff to Balmain Partners. I am satisfied that she did make that introduction and that her intention was to perform this task gratuitously for someone with whom she had socialized to an extent and with whom she shared a mutual friendship with Ms Redwood in particular. She was however then an employee and I accept her evidence that she was required to account to her employers for her time. I note that it was not put to Mr Olliver, managing partner at relevant times, that her evidence on this topic was inaccurate.

28 Time sheets recording activity were completed. On a matter for which instructions had been received and a file had been opened, these could be despatched to the financial controller who would convert the content into a computer entry and in due course collate these entries for billing purposes. The original time sheets were not preserved. If activity was pre instructions (which may or may not later be received) and for which therefore no file had been opened, the time sheets were simply kept in a folder to be eventually discarded if no instructions were taken or sent to the controller if that become appropriate. This routine was followed in respect of the plaintiff.

29 In fact on 31 January a file was opened but I accept that this was to cope with the volume of approaches, and hence production of time sheets, being made to Ms Snelling by or on behalf of the plaintiff. The plaintiff had a part-time secretary Ms Brown and, it appears, other staff and documents were delivered to Michell Sillar reception most likely, I infer, on many occasions by intermediaries rather than by the plaintiff himself. Ms Snelling kept her arrangement and set up an appointment between the plaintiff and Mr Leckie of Balmain Partners. Later on 13 February the plaintiff came to Ms Snelling’s office and asked her to attend a meeting with him which she did. Present at the meeting were Mr Leckie and a Mr Vernon Lee of St George Bank. Details of meeting or meetings are matters of dispute and it should not be taken that I accept the plaintiff’s description.

30 It is convenient to refer to the absence of Mr Leckie as a witness. At the commencement of the hearing, senior counsel for the plaintiff in the course of dealing with objections to parts of his client’s affidavit said “About Mr Leckie. There is no affidavit in regard to Mr Leckie. He can’t be found. We have tried in fact to do that.” In that circumstance I decline to draw the inference, as submitted by the plaintiff, that the evidence of Mr Leckie would not assist the defendant.

31 There is again contradiction between Ms Snelling and the plaintiff about the detail of the meeting or meetings with Mr Leckie and Mr Vernon Lee. I prefer the version of Ms Snelling and that conclusion is supported by the incredibility of the plaintiff’s reference to Ms Snelling’s promotion of the St George Bank. There is also some evidence of some reference to St George Partners but it is unnecessary to trace this. Ms Snelling was employed to attend to litigation and family law and there would be no reason for her to promote the bank. The plaintiff asserts, as the extract of evidence above shows, that she claimed that Mr Olliver was wanting to develop closer relationships with that bank but the evidence of Mr Olliver is that he had no relationship with St George at all.

32 As Ms Snelling deposed, she and her secretary began to receive multitudinous contacts including calls from creditors of the plaintiff, as a result of which she decided to charge him fees. There is no evidence of how, when or if this was communicated to the plaintiff but an interim account from the financial controller dated 6 March 1995 provoked no protest (or any other response) from him until a long time (and several further accumulating accounts) later.

33 On 27 February there was something approaching formality of instructions evidenced by a file note about contact with the NAB regarding discharge (I infer of securities), SD (stamp duty) and interest rate. The note concluded “We to act on refinance if approved”. The last two words bear emphasis.

34 No finance was ever approved. Given Ms Snelling’s area of practice it is entirely credible that on 13 March she told Mr Olliver about the matter and he told her to refer the plaintiff to another employee (Mark Milne) whose duties included assisting with conveyancing finance. This reference was made. It is some indication of the absence of collaboration on the part of the defendant in preparing evidence that Mr Olliver had apparently forgotten this meeting as his first stated recollection of hearing of the plaintiff is by a phone call from him on 24 March. I find it unsurprising that Mr Olliver might not recollect something as routine as directing one employee to send someone with a particular need to another appropriate employee in a different section of the practice.

35 Much cross examination was directed at Ms Snelling concerning letters which she wrote with opening statements along the lines of saying that the firm “acted for” the plaintiff. I do not find that expression inconsistent with her claim that she was performing these tasks and, initially, intended to undertake them gratuitously. I would hardly expect her to write, for example, to a bank and say that she was writing as a favour for a friend or an acquaintance.

36 I do not overlook that in a letter of response dated 15 March 1996 to the plaintiff’s complaint to the Legal Services Commissioner Ms Snelling stated that she did not undertake to deal with his creditors and it does appear that three short letters seeking that creditors give the plaintiff some time for settlement were sent by her. I am unable to say whether the apparent contradiction results from carelessness in preparing the response to the Legal Services Commissioner or a deliberate attempt to minimize the activity undertaken by Ms Snelling. However, I do not find that this single instance provides a satisfactory basis for rejecting Ms Snelling’s evidence generally. Indeed, in contrasting her evidence with that of the plaintiff there are considerable reasons for doubting his credibility and I turn to some of these.

THE PLAINTIFF’S CREDIBILITY

37 As the extract of evidence above recited demonstrates, the retainer of the defendant is alleged by the plaintiff to have been made in explicit terms on 25 January 1995, yet in the lengthy and detailed “chronology” submitted to the Legal Services Commissioner in January 1996 no mention is made of this meeting at all. Although pleaded, it is an extraordinary omission that no reference to the meeting appears in the plaintiff’s affidavit of evidence. Ms Snelling’s denial that there was an attendance at her office by the plaintiff is supported by the computer record, no doubt taken from a time sheet, showing only a telephone attendance on that day. He could not have provided the documents which he described if his attendance was by telephone and I do not believe that he gave the detailed and explicit instructions to which he has testified.

38 The plaintiff repeated, almost as a mantra and whether it was responsive to questions or not, that he relied wholly upon Ms Snelling. In support of the same proposition he recited in his affidavit extracts from a letter dated 16 February 1995 written by Ms Snelling to the Stamp Duties Office in which reference is made to a refinancing package having been negotiated and seeking deferral of due payment of duty. There is convincing evidence, including facsimile date stamping, that the plaintiff did not receive a copy of this letter until April 24. His alleged reliance upon it is a deliberate and false reconstruction and he could not have relied upon the content of that letter at a relevant time. I am of a similar view in relation to any asserted reliance upon the content of another letter containing reference to finance despatched to the NAB and dated 28 February 1995.

39 The plaintiff vehemently asserted that he had been informed and that at all material times he believed that Balmain Partners was an entity of the defendant. It is common ground that the defendant’s Parramatta branch and Balmain Partners had offices on the same floor of a building. There are a number of reasons for rejecting the plaintiff’s asserted belief. The chronology submitted by the plaintiff to the Legal Services Commissioner shows a clear understanding of the distinction between dealing with the solicitors and dealing with the financiers. He explicitly recorded that on 24 March 1995 Balmain Partners advised (presumably him) that “the matter was not going to proceed” and on 12 April 1995 he wrote to them complaining and foreshadowing commencement of proceedings. It is of interest to note in estimating the plaintiff’s financial position and his consciousness of it that such proceedings were never commenced and he explained in evidence that he could not at the time afford to do so.

40 He attempted to shift responsibility for this lastmentioned letter to Ms Snelling who, he said, in effect settled the letter. This claim is undermined by the extract of the draft from his own secretary Ms Brown’s word processing computer and her evidence, which I accept, that she never took dictation for a letter from Ms Snelling and that the probability was that the letter extracted from the electronic file was dictated by the plaintiff.

41 I would not discount the possibility that a representative of Balmain Partners might have said to the plaintiff or to Ms Snelling or to both of them on occasions that refinancing would be made available to the plaintiff but such a statement would only be made in the ordinary course of business subject to provision of satisfactory security and that condition would be well understood. Noting the paucity of information about assets and income provided to this Court from which an award of damages is sought, it would not surprise if the necessary information about securities was not forthcoming from the plaintiff to a potential moneylender.

42 It adds weight to my conviction that the plaintiff has reconstructed, and to the extent that there are some underlying facts concerning contact and the like, embroidered a story that he had essentially placed himself in the professional hands of Ms Snelling for the purposes for which he recounted, to observe a letter dated 22 March 1995 from Law & Milne Mortgage Management Pty Limited of 1 Farrer Place, Sydney, (in which building, incidentally, the Sydney offices of Corrs Chambers Westgarth is situate) offering the plaintiff directly a loan of $600,000.00 subject to, inter alia, satisfactory valuation and credit reference report. Necessarily an application for such finance would have to have been made before the date of the letter, yet the plaintiff now claims that he was operating at that time under the belief that Ms Snelling had been instructed to obtain and had told him that she had obtained refinance for him. I mention in passing that the application to Law & Milne does not appear consistent with the representation by the plaintiff to the Legal Services Commissioner that it was “not until 24 March 1995 that Balmain Partners advised that the matter was not going to proceed”. One would wonder why he would be seeking accommodation from Law & Milne if he believed that he had accommodation approved and arranged with Balmain Partners.

43 There were peripheral issues explored at trial out of which once again the plaintiff’s credit does not emerge unscathed. His proposition that at the core of activity was advice or suggestion from Ms Snelling that he could somehow emerge from financial problems by running Highlands as a bed and breakfast establishment strains my credulity. She had been inside those premises once. The plaintiff was contracted to purchase Darjeeling yet was without funds to complete and, as the evidence showed, had even borrowed the deposit. The income stream from a bed and breakfast operation would need to be stupendous to enable the plaintiff to meet then current commitments and I do not accept that any responsible person could contemplate that as a financial solution.

44 There was some discussion about this but the probable inspiration came from the plaintiff. The later introduction of a possible candidate to run such a business by Ms Snelling and/or Ms Redwood does not affect that finding. So far as subsequent events are concerned there is a letter authored by a solicitor at Corrs Chambers Westgarth specifying the plaintiff’s intention to run such a business at Highlands.

45 There is no evidence to suggest Ms Snelling is financially irresponsible but it is revealing of the plaintiff’s lack of prudence that he has made claims to have spent in the order of $50,000.00 on Darjeeling although he was merely occupying it under licence and not in a position to settle the purchase.

46 There is a description in the plaintiff’s affidavit of a conversation between him and Ms Snelling at a restaurant in Wentworth Falls to celebrate Ms Redwood’s birthday. She remembers 1995 in particular as her fiftieth year. The plaintiff was adamant that this dinner took place on Monday 20 February. Ms Redwood agreed that that day was her birthday but deposed that the celebration was at the restaurant on the Sunday night 19 February. She also observed that whilst the plaintiff and Ms Snelling were both present she did not see them sit together as stated in the plaintiff’s version when he said that he and Ms Snelling sat next to each other at the end of the table.

47 The date of the dinner became the subject of some vigorous contest. Ms Redwood produced a small diary in which was recorded “dinner – W.Falls” on Sunday 19th. Monday 20th had an entry “dinner – M” and Ms Redwood was specific that this related to a regular arrangement to dine with a friend (Maureen) who did not join others at the previous dinner because she suffered from agoraphobia.

48 Late in the hearing the plaintiff also referred to his diary, other extracts from which (but not this entry) had been the subject of discovery and he testified that this demonstrated that he spent the weekend at Pearl Beach arriving back on the Monday morning, hence the dinner at Wentworth Falls, if he were to attend, must have been on that evening and not the previous one. The plaintiff’s diary records arrangements of course and it does not prove their execution. The same comment applies to Ms Redwood’s diary but I am satisfied that Ms Redwood’s testimony is correct.

49 It is noteworthy that the plaintiff’s diary entry about the weekend was not produced until his case in reply was being undertaken yet by Ms Redwood’s affidavit in particular the dispute with the plaintiff’s version of the date of the dinner was long ago “telegraphed” to him.

50 The plaintiff’s capacity to depose to demonstrable inaccuracy is further exemplified in his reference to a dinner at Ms Redwood’s birthday celebration for the following year. This was held at the Grandview Hotel, Wentworth Falls on Tuesday 20 February 1996. By this time the plaintiff had lodged his complaint about the defendant (and specifically Ms Snelling) with the Legal Services Commissioner. Ms Snelling deposed that she had no recollection of attending such a dinner but thought she would not have been there because it was incompatible with her working hours at Parramatta. These were not working hours in the employ of the defendant.

51 Ms Redwood was not asked about who attended the dinner in 1996 but the plaintiff asserted that Ms Snelling was present and he deposed to a conversation (denied by Ms Snelling) the content of which included statements that she intended to leave the firm and that any complaints which the plaintiff had were “their problem”. The undisputed fact is that Ms Snelling had already left the firm in about May 1995 and statements that she intended to leave cannot fit the plaintiff’s evidence of the content of the conversation and is quite unacceptable. I find the probability is that Ms Snelling was not at a dinner in Wentworth Falls on Tuesday 20 February 1996.

52 No purpose would be served by my recitation in detail of every diction and contradiction between the plaintiff and Ms Snelling. Perhaps she was more enthusiastic about assisting the plaintiff (who styled himself Lord Andrew of Craigstown and/or Lord Lee, which style she adopted from time to time – as did others, for example Law & Milne) than she now recalls but that is far from making the plaintiff’s version credible.

53 There is a final matter upon which I will elaborate which again shows the addition of fabricated detail by the plaintiff to some uncontroverted circumstance. The plaintiff referred to an occasion upon which he and his secretary attended at the Burnside Homes. The date was 13 February. Such a visit in fact took place. Although the content in the plaintiff’s affidavit was objected to and rejected, his case was that through Ms Brown and while at Burnside he had received a significant call from Ms Snelling. What he wished to say was subsequently evidenced in what became Exhibit 4. A draft affidavit was prepared by the plaintiff’s then solicitor and forwarded to Ms Brown. The plaintiff was the only reasonably possible source for the content which the solicitor included in the draft. Ms Brown declined to swear the affidavit because, as she said in evidence, she had received no call on the occasion from Ms Snelling but she did receive a call on that occasion from Mr Leckie. The variation is important when it is remembered that the plaintiff was claiming that he dealt with and relied upon Ms Snelling and that so far as he knew Balmain Partners was simply some sort of financial arm of the defendant.

54 Ms Brown impressed me as determined to be as accurate as possible. She bore the plaintiff no ill will and left his employ on good terms. She was conscious of and conscientious about a confidentiality agreement she had with him and she attended court in answer to a subpoena. Her evidence provides a convincing instance of attempted fabrication on a material matter by the plaintiff in order to support his contentions.

THE BANKING FACILITIES

55 Much time at trial was occupied in the detail of assertion and counter assertion concerning the warnings from the Bank that it was calling in the plaintiff’s debts. I do not accept that Ms Snelling gave advice to the plaintiff as to whether or for how long he should roll over his bank bills. Contrary to the plaintiff’s claim that accommodation would be had from the bank simply by a phone call, I consider it more likely that he would have had more difficulty in finding the forwardly payable interest on the bills and that he was hoping that time would see his financial rescue either by refinance becoming available or perhaps the ultimate sale of Highlands. To the extent that Ms Snelling wrote letters for him they were designed to assist him gain some time for those purposes. I reject his evidence that Ms Snelling advised him to ignore the plainly stated warnings from the Bank and I am also satisfied that such correspondence as she entered into was to assist him to achieve delay in order to see if the hope which I have mentioned might be fulfilled.

JONES v DUNKEL

56 I have dealt with the absence of testimony from Mr Leckie. Counsel for the plaintiff made specific submissions concerning the absence also of Mr Dugar and Ms Snelling’s secretary. Mr Dugar was a manager at the plaintiff’s bank. He is not a witness that I would have expected the defendant to call. So far as the evidence shows, most of any contact between Ms Snelling’s secretary and the plaintiff was through intermediaries, particularly Ms Brown. I do not anticipate that she could give admissible evidence about dealings with Balmain Partners (if any) concerning the plaintiff. I decline to draw the inferences, invited in the submission, that the evidence of Mr Dugar or Ms Snelling’s secretary would not assist the defendant’s case.

CONCLUSION

57 The plaintiff, I find, was an unreliable witness and I accept his evidence only to the extent that it is uncontradicted. Given my rejection of the essence of the plaintiff’s testimony his claims must fail on any cause of action against the defendant, however pleaded.

COSTS

58 The defendant expressly sought an order for indemnity costs. Whilst I have found that the plaintiff has reconstructed, glossed and fabricated I do not discount the possible existence of some underlying delusion that the defendant was somehow responsible for the financial woes which afflicted him. I emphasize that there was no sound basis for such delusion. However, I could not fail to notice that almost invariably when some discrepancy was pointed out to the plaintiff he sought to blame someone else not only on the basic issues in litigation but in adjunct matters, for example, the “failure” of the solicitor to include the description of alleged events on 25 January 1995 in his affidavit. I would assess this trait as an apparent incident of his personality but I make this observation only for the purpose of ruling in his favour on this submission. The plaintiff has brought proceedings which fail on the merits and the successful defendant should be indemnified by the usual order as to costs. I am unpersuaded that the circumstances reveal an occasion for the exercise of discretion to order costs on an indemnity basis.

ORDER

59 I direct entry of judgment for the third to eighth defendants (that is, those defendants sued as partners of the firm practising as Michell Sillar). I order the plaintiff to pay the costs of those defendants.

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Last Modified: 04/16/2003