Bowman v Westpac Banking Corporation No. Scgrg-97-578 Judgment No. S6499
[1997] SASC 6499
•23 December 1997
BOWMAN AND ANOR V WESTPAC BANKING CORPORATION
Full Court
Coram: Cox, Prior and Olsson JJ
Olsson J
Introduction
The appellants appeal against a judgment entered against them by a District Court Judge on 3 April 1997. They had sought to impugn a guarantee, ‘all monies’ mortgage registered in respect of property owned by them at Berri. This was to support monetary advances made by the respondent to their son to enable him to finance a real estate development called “Xanadu Court Estate” (‘Xanadu’) on broadacres land contiguous with their property. Unfortunately, due to high interest rates and an economic downturn, this development project proved to be unprofitable. The respondent sought to enforce its security against the appellants to recover moneys owing to it by the appellants’ son.
Pending resolution of matters in dispute the appellants sold their property early in 1993. The proceeds were paid into a security realisation account controlled by the respondent. Eventually it debited $72,913.00 against that account, being the ultimate balance due by the son and claimed by it against the appellants under the guarantee.
In full and careful reasons for decision published by him on 3 April 1997 the learned trial Judge recited that, in the instant proceedings, the appellants pleaded a considerable variety of causes of action against the respondent. He said:
“The Bowmans cast an extremely wide net as far as the causes of action pleaded are concerned. I have attempted to summarise them as follows:
1...... The 1989 representations were misrepresentations (Misrepresentation Act, s7) and constituted misleading or deceptive conduct or conduct that was likely to mislead or deceive (Trade Practices Act, s52; Fair Trading Act, s56).
2...... The 1990 representations (oral and written) were also misrepresentations.
3...... The bank’s action in taking the net proceeds of the sale of the Bowmans’ property and appropriating $72,913 out of those proceeds was wrongful and amounted to conversion because the bank had no valid security for the following reasons:
3.1... The deposit of the Bowmans’ title did not give any valid security to the bank because the deposit was -
3.1.1.. induced by the 1989 representations and any security was therefore void or voidable (Trade Practices Act s87; Fair Trading Act s85);
3.1.2.. obtained by unconscionable conduct by Clutterham (Trade Practices Act s51AA; equity)
3.2... The 1989 mortgage is void, voidable, invalid or liable to be declared invalid because -
3.2.1.. it was signed by the Bowmans because of the 1989 representations;
3.2.2.. it was signed by the Bowmans because of misleading and deceptive conduct by Clutterham (Trade Practices Act ss51A and 522; Fair Trading Act ss54 and 56);
3.2.3.. it was created by unconscionable conduct by Clutterham (Trade Practices Act s51AA; Fair Trading Act s57);
3.2.4.. it was not the Bowmans’ deed (“non est factum”).
3.3... The 1990 mortgage is void voidable, invalid or liable to be declared invalid because -
3.3.1.. it was induced by the 1990 representations (oral and written) and by misleading and deceptive conduct; and
3.3.2.. it was obtained by unconscionable conduct (Trade Practices Act s51AA; Fair Trading Act s57; equity) or undue influence or duress on behalf of the bank.
3.4... In the alternative, if the deposit of the Bowmans’ title and the mortgages constituted valid securities -
3.4.1.. there was a binding agreement pursuant to the 1989 representations whereby the Bowmans agreed to deposit their title with the bank temporarily until the Xanadu titles were issued, in consideration of the bank advancing further money to John, and the bank was in breach of this agreement;
3.4.2.. there was a further binding agreement pursuant to the 1990 representations whereby the Bowmans agreed to sign the 1990 mortgage in consideration of the bank -
3.4.2.1. forbearing to take action to bankrupt the Bowmans and John; and
3.4.2.2. releasing the Bowmans from all liability to the bank once the sale of 4 or 5 Xanadu allotments had been effected and John’s indebtedness to the bank reduced by $100,000,
and the bank was in breach of this agreement.
3.5... In the further alternative, the bank owed to the Bowmans a duty to take reasonable care that any representations made by it to the Bowmans were true, and the bank breached that duty by making the 1989 and 1990 representations.
3.6... In the further alternative, the 1989 representations and the 1990 representations were made to create, and did create, certain beliefs or understandings in the minds of the Bowmans and were relied upon by the Bowmans to their detriment in signing the 1989 and 1990 mortgages and the bank is therefore estopped from -
3.6.1.. resiling from the 1989 and 1990 representations;
3.6.2.. retaining the net proceeds of the sale of the Bowmans’ property; and
3.6.3.. relying on any term of the mortgages that is inconsistent with the 1989 and 1990 representations.”
The learned trial Judge dismissed the appellants’ claim after a lengthy trial on oral evidence. It is necessary to recite the substance of his findings of fact to appreciate the issues arising on the appeal.
Credibility
In proceeding to do so I note at the outset that he made quite detailed findings as to the credibility of each of the appellants and their son John. Like the learned trial Judge I propose to refer to the male appellant as “Mr Bowman”, to the female appellant as “Mrs Bowman” and to their son as “John”. All of them gave oral evidence.
It is fair to say that he did not find any of them to be impressive witnesses. As to the two males he formed the view that “they heard only what they wanted to hear”. He commented that “... when they were being asked questions ... often they either did not listen or they heard only what they wanted to hear”. He went on to make the point -
“I believe that they have discussed the relevant events with each other so often, and have recounted them to others (three different firms of solicitors, senior personnel in the bank, the Banking Ombudsman etc) so often that there has been a considerable amount of cross-pollination of memory between the three of them. As a result, their evidence is, in the main, consistent regarding the things they regard as being central to their case, but inconsistent about almost everything else.”
He particularly drew attention to what he considered to be their illogically fluctuating ability to recall important historical facts.
As to Mrs Bowman, he noted her admitted poor memory and concluded that it was doubtful whether she would have taken in all that was said by the person who was the key witness for the respondent. It was her attitude that, in any event, she deferred to the men in business matters.
It was the ultimate assessment of the learned trial Judge that “Some of the evidence of the Bowmans and John is inherently unlikely and some simply does not make sense”.
Two key witnesses for the respondent at trial were Clutterham (who was, at the relevant time, the assistant to the Manager at its Berri Branch) and Ms Webber (who was then assistant to Clutterham). The learned trial Judge found the evidence of the latter witness “to be generally reliable”. He also concluded that the contemporaneous diary notes of Clutterham’s meetings with the appellants and John were accurate and reliable, although he was not as impressed with other aspects of his evidence - as to which he commented that both Clutterham and the respondent had a tendency to regard form as more important than substance.
All that need be said, by way of summary, on the issue of relative credibility is that the assessments made by the learned trial Judge were fairly open to him on the evidence. There is simply no basis for questioning the propriety of them. Necessarily, those assessments coloured his findings of fact.
Relevant Historical Facts
What follows is my distillation of the key features of the findings of fact made by the learned trial Judge.
John was engaged in the development of Xanadu from some time in 1986. He set out to have the broadacres rezoned and subdivided into residential allotments. To achieve that end result it was necessary for him to secure substantial money advances from the respondent. An all up cost of almost $30,0000 (including interest) was contemplated. He needed to borrow that total amount over time.
The learned trial Judge concluded that, in entering into the project, John “was over his depth and involved in something he really did not understand” - at least so far as the financing aspects were concerned.
He had most of his detailed dealings concerning financial accommodation with Clutterham. Initial discussions had involved the Branch Manager.
The thrust of the appellants’ evidence was that, by mid 1989, the respondent found itself over-exposed in respect of John’s indebtedness and did not wish to advance further monies in respect of Xanadu unless they lodged the title to their adjacent property, to be held temporarily and returned as soon as the development titles for the residential allotments were issued. This was said to have been discussed by them with Clutterham prior to 11 August 1989.
The learned trial Judge rejected that evidence, which was in discord with a diary note made by the Manager of the Berri Branch on 27 July 1989 - apparently just prior to when an account was first opened by John with the Berri Branch. This read -
“BOWMAN John 27/7/89
State Bank CustomerJohn has been in contact with us over the past few months regarding the establishment of a new housing development at Fenwick Rd., Berri. Existing Bankers, State Bank have had ‘personality clashes’ with John in the past, hence his approach to us. (For full details of development refer proposal on file). John will require the following:
State Bank Existing payout $32,000
Council G’Tee $ 5,000
ETSA G’Tee $ 6,000
Solicitors Fee $ 2,000
$45,000I have approved O/D $45,000 @ ILR + 2%. Interest 1/4y Est Fee $755 (Above Scale)
Clearance of further borrowings within 12 months or on issue of titles.
Security will be registered. RPA Mortgage from Debtor to himself & registered RPA 3rd Party Mortgage from his parents to him.”
That diary note rendered it quite clear that, from the outset, the respondent required a ”3rd party mortgage” from the appellants to support any advances made to John. This situation was confirmed in the letter of offer of finance, dated 4 August 1989, sent by the respondent to John (AB 90).
The appellants further asserted in evidence that they both spoke with Clutterham and lodged their title with the respondent prior to 11 August 1989. They claimed that they further went to the respondent’s office on 11 August 1989, when they were told that the respondent was over-exposed and that they were required to sign what they understood to be a mere guarantee, as a temporary measure until the allotment titles issued.
It must be borne in mind that the appellants steadfastly contended that they did not sign any mortgage on 11 August 1989. They said that they signed a document on white paper - “they were shown a single ‘signature’ page of a document or, alternatively, four pages including a ‘signature’ page. They signed their names on the ‘signature page’ and on a duplicate ...”. It was witnessed by Clutterham.
As the learned trial Judge pointed out, that evidence was patently incorrect. What they did sign was an “all monies” guarantee mortgage on the traditional blue Lands Titles Office paper. It was some ten pages in length and witnessed by the Berri Manager, Mr Wight (See AB pp68-77).
Moreover, as the learned trial Judge said -
Both Clutterham and Ms Webber made a diary note about the meeting on 11 August 1989, specifically about the explanation given to the Bowmans about what they were signing. If their notes had been identical in some standard bank form, I would have placed no more reliance on them than on Clutterham’s ‘Manager’s Certificate re Survey’. However, this was not the case. The two notes seem to me to comprise reasonable attempts made by two different people to summarise in their own way the explanations given to the Bowmans, even to the extent that Clutterham’s contains many errors of spelling and syntax that are not present in Ms Webber’s. Perhaps the notes are coloured to some extent by what the manual says must be explained, but they do not slavishly follow the manual.
Clutterham’s note (exhibit D11 p39) reads as follows:
‘BOWMAN J.T.
Above together with AB & BM Bowman called to execute 3rd Party Mortgages.
We explained the following:
The nature and effect of the 3rd Party Mortgage was explained to AB & BM Bowman and they advised that if the debtor should default on payment of the debt the Bank can:
- demand payment from the 3rd Party Mortgage
-....... sell the mortgaged property by executing it’s [sic] power of sale on Mortgagee.
- surety were informed the extent of their liability was unlimited.
-....... surety’s [sic] were advised of the desirability to seek independant [sic] legal advise [sic] and surety’s [sic] advise [sic].
- surety’s [sic] were aware of debtors [sic] commitments to the Bank.
-....... surety’s [sic] were aware of the ramifications of the Mortgage.
Above was explanied [sic] by two officers of Westpac Banking Cororation [sic] M.B. Clutterham and S.K. Webber.’”
Ms Webber’s note (exhibit D11 p37) reads as follows:
‘BOWMAN John Timothy
Subject; Signing of Third Party Mortgage.
Remarks:. John called with his parents Albert Bowman and Betty Bowman and they were advised that if the debtor should default on payments of the debt the Bank can sell up the mortgaged property by exercising its power of sale as Mortgage [sic].
.................. They were also informed the extent of the liability is $285,000 -
.................. Full ramifications of the all moneys clause was explained.
.................. Albert and Betty were advised to seek independant [sic] legal advice if they so desired.’
Counsel for the Bowmans made a great deal of what at first sight seems to be an inconsistency between Clutterham’s note ‘the extent of their liability was unlimited’ and Ms Webber’s note ‘ the extent of the liability is $285,000’. However, I think that two different liabilities are being referred to. ‘Their liability’ clearly means the liability of the Bowmans under the Third Party Mortgage, which was indeed unlimited. ‘The liability’ refers, in my view, to the liability of John to the bank (which was then expected to be $285,000) and corresponds to Clutterham’s note ‘surety’s [sic] were aware of debtors [sic] commitments to the bank’. John admitted in evidence (transcript p484) that Clutterham told the Bowmans that the bank was proposing to lend about $285,000.”
It is small wonder that the learned trial Judge rejected the evidence of the appellants and found the situation to have been, in substance, as recorded in the diary notes.
He also rejected the suggestion that the appellants had any meeting with Clutterham prior to 11 August 1989. John’s evidence was to that effect (T466). Any prior deposit of the title must have been made by John.
The learned trial Judge unequivocally rejected the suggestion that Clutterham ever represented to the appellants - either on or before 11 August 1989 - that their title would be returned on issue of the allotment titles for Xanadu. In his reasons he commented -
“... for completeness I record a finding that the 1989 representations in relation to return of title were not made by Clutterham on 11 August 1989 or at all. Clutterham’s diary note dated 27 July 1989 (exhibit D28) records that the approval given to John included the condition ‘clearance or further borrowings within 12 months or on issue of titles’. This statement is recorded in the context of John’s requirements, not in the context of the security required by the bank. It has nothing to do with clearance of the security.”
(The reference was, of course, to the clearance of John’s indebtedness).
The learned trial Judge went on to make the point -
“It is possible that at the meeting on 11 August 1989, Clutterham may have repeated to the Bowmans the loan condition to which I have referred above (‘clearance or further borrowings’ etc.). However, the Bowmans have not satisfied me that Clutterham represented to them that their title was required temporarily and would be returned to them when the Xanadu titles were issued. I think that the Bowmans genuinely, but mistakenly believed that they would get their titles back when the Xanadu titles issued. Exactly where that belief came from, I cannot say. But I am satisfied that it could not reasonably have been engendered by anything said to the Bowmans by Clutterham.”
Any objective consideration of the evidentiary material compellingly underlines the validity of that conclusion. The same must be said of the finding of the learned trial Judge that, on 11 August 1989, the appellants were well aware that the document which they were asked to sign was a mortgage over their home to guarantee the indebtedness of John to the respondent.
What followed after 11 August 1989 is best summarised in the following description of the learned trial Judge:-
“In order to make one of the 21 subdivided allotments in Xanadu an acceptable size and shape, some land had to be taken from the Bowmans’ property and added to Lot 12 of the Xanadu development. It was agreed that there should be a ‘swap’ of two pieces of land, so that Lot 12 incorporated some of the Bowmans’ land and the Bowmans’ land incorporated part of Lot 21. The changes can be seen on the plan certified by John’s surveyor on 20 December 1989 (exhibit D7). Mr Bowman and John knew about this. Mrs Bowman knew that there had been ‘several boundary changes’ (transcript p426). The plan of the subdivision, incorporating these boundary changes, was finally approved on 18 April 1990.
One consequence of these changes was that the mortgages granted to the bank by John and the Bowmans no longer accurately described the land respectively owned by them. Accordingly, the bank prepared further mortgages for signature by John and the Bowmans. The further mortgage for John covered the additional portion of Xanadu Lot 12, which had ceased to be part of the Bowmans’ land. The further mortgage from the Bowmans covered the additional portion of their land (Lot 22 on the plan) which had ceased to be a part of Xanadu Lot 21.
On 15 May 1990, the Bowmans and John attended at Clutterham’s office. This is the meeting at which they claim that Clutterham told them that John needed more finance and that the bank would not provide it without another mortgage. As I have already observed, it does not make any sense for Clutterham to have said this. The bank already had unlimited ‘all moneys’ mortgages from John and the Bowmans and a further mortgage would not have improved its security at all. Again, the Bowmans and John must be mistaken about this. I find that at the meeting on 15 May 1990 Clutterham explained to the Bowmans and to John that they would have to sign further mortgages because of the realignment of boundaries to which I have just referred.
The result of my finding that the Bowmans knew on 11 August 1989 that they were signing a mortgage is that I cannot accept their claim that they first discovered on 15 May 1990 that the bank regarded them as having previously given it a mortgage.
It may be that the Bowmans were confused about the reason for the further mortgage. They asked for a copy of what they had signed before. Clutterham said he could not give them the actual document, but he gave them a copy of the bank’s standard form of trading bank mortgage. I find that he then showed them the further mortgages and explained to the Bowmans that their mortgage had to be signed in the presence of a solicitor. (He said in evidence that this was because of a change in bank policy, but he may not have explained this to the Bowmans.) John signed his mortgage at the bank on 15 May. I find that the Bowmans took theirs with them to have their signatures witnessed by a solicitor.
The Bowmans immediately consulted a firm of solicitors in Berri. The solicitors were not called, but their file was produced and an agreed transcription of some hand written notes was tendered (exhibit D52). The notes are rather cryptic, but it is clear that the Bowmans complained that they were supposed to be released from their mortgage when the Xanadu titles issued. It also seems clear that the Bowmans had been told at some stage that this would not be the case. This must be so, because the Xanadu titles had not been issued, so unless something had been said to them there would be no reason for the Bowmans to suppose that they would not be released when they expected to be.
There was nothing on the solicitors’ file to indicate that the Bowmans complained that what they had signed was not a mortgage. It is clear from the notes that their main concern was, as the notes say, ‘when will they be discharged’ (the underlining is not mine).”
The learned trial Judge observed that a note made by the solicitors concerned did make reference to a possible release of the appellants’ property. However, he recorded that -
“One note on the solicitors’ file is very significant. In relation to a telephone call received from John on 16 May 1990, it includes this:
‘Long discussion. Disappointed with the bank. Agree that they had made a representation to hopefully discharge when four allotments had been sold but reality is that they must have as much security as they can get.’
Whether this ‘representation’ was one made to John or to the Bowmans or to the solicitor during the phone call to Clutterham is impossible to say. However, the significant word is ‘hopefully’, which tends to negate the idea that any such representation amounted to a definite promise.”
This fell to be contrasted with a diary note made by Clutterham on 29 May 1990 in these terms -
Bowman J.T.
Subject: General Interview.
.................. John and his parents called for a general discussion. Development is well on target and should be completed by end of July. Mr and Mrs Bowman had some concern’s [sic] regarding the third party Mortgage they have executed. They felt that the Bank had an open ended Mortgage, that did not allow for discharge their Mortgage at any time. I advised them that whilst this was true, the Bank would probably be prepared to release their security once the sale of 4 or 5 blocks have been sold, which would reduce our debt by $100,000.”
The critical word in that text is “probably”.
It is not surprising that, on the whole of the material before him, the learned trial Judge, rejected the proposition that Clutterham ever made any unqualified promise to the appellants concerning the release of their title. As he put it, in relation to the appellants’ contrary evidence - “Mr Bowman and John both have a tendency to hear only what they want to hear”.
The plain fact of the matter was that a copy of Clutterham’s diary note was sent to the appellants shortly after 29 May 1990. The learned trial Judge had no hesitation in rejecting Mr Bowman’s evidence that, on receipt of the copy note, he telephoned Clutterham and complained about the qualifying word “probably”. One poses the obvious question - If Mr Bowman found this objectionable and at odds with the representation said to have been made, why did the appellants then proceed to sign the second mortgage on 7 June 1990?
One important aspect of the evidence in this regard was that adverted to by the learned trial Judge as under -
“As I understand Clutterham’s evidence, when he said something about clearing the Bowmans’ mortgage when four or five blocks were sold and $100,000 was returned to the bank, he was referring to what the bank’s ‘exposure’ would have been if these things happened in a reasonable ‘time frame’. At the time of this discussion, a reduction of $100000 would have reduced John’s liability to the bank to $213000 (John’s indebtedness was about $183000 and there was still $130000 payable under the performance guarantees). Clutterham must have thought that the mortgage given by John would have been sufficient security for that amount, without the Bowmans’ mortgage. However, if the time taken to sell the four or five blocks ‘ballooned out’ (as Clutterham put it) the position might be different.
A letter written by John to Clutterham on 28 October 1991 (exhibit D19) suggests that John was aware of some intended relationship between the reduction of his indebtedness to the bank and the balance of his indebtedness. He said ‘the original agreement was based on the sale of five allotments representing a cash recovery of $100000, when the total level of indebtedness was $270000’ (my underlining). The reply from Clutterham (exhibit D20) confirmed this relationship and said ‘Of course due to lack of sales the debt increased substantially and when sales occurred [sic] they were at a far reduced price than originally anticipated’.
John’s reference in this letter to ‘the original agreement’ (my underlining) may also be significant. It is inconsistent with the allegation that the first agreement (as a result of the 1989 representations) was that the Bowmans’ title would be released when the Xanadu titles were issued.
In fact a period of 13 months elapsed between the discussion on 29 May 1990 and settlement on the sale of the fifth allotment on 28 June 1991, which brought the total net sales proceeds received by the bank to $116360. The balance of John’s account at the close of business on 28 June 1991 was $296062 (it had been as high as $331000).”
The learned trial Judge concluded his findings by making the obvious point that, in the final analysis, “it really comes down to the question of credibility”. He described the net situation in these terms -
“their ...[ie. the appellants] ... memories are very poor, their recollections are often inconsistent and their evidence is simply unreliable in many respects. Clutterham’s evidence was far more consistent and credible and ... he had the advantage of having made many contemporaneous notes.”
So it was that the learned trial Judge expressly found that the various representations pleaded and relied on by the appellants had never been made. For that reason this action foundered.
Issues on the appeal
I make no apology for the extensive foregoing citations taken from the reasons published by the learned trial Judge. This has been essential to obtain the “flavour” of the trial and the evidence, against which the points sought to be made by the appellants on this appeal may be examined.
Mr Evans, of counsel for the appellants, accepted the formidable onus of attempting to demonstrate that, in arriving at his findings of fact, the learned trial Judge had fallen into error by drawing inferences (as to the execution of both the 1989 and 1990 mortgages) which were contrary to the inherent probabilities arising from certain specific “uncontroverted facts and documents”.
The material to which he referred is set out in extenso in his written outline submissions. I do not consider it necessary to rehearse it in detail at this time. Suffice to say that I have studied it with care.
It should be said that he stressed the fact that the primary bank records in relation to the application for credit approval of the loan made to John were never produced at trial, although called for, and a conclusion adverse to the respondent ought to be drawn as to its possible content. However, the call was not made until during the trial, at a point about 8 years after the event, the relevant offices of the respondent having been closed and, presumably, the relevant records having been placed into storage. It would, on any view, have been a monumental task to locate them at short notice and it is small wonder that they were not forthcoming.
He also sought to contend that certain of the content of a letter written by the solicitors for the respondent to the solicitors for the appellants was inconsistent with Clutterham’s evidence and diary notes concerning the circumstances in which the 1990 mortgage was executed. I do not read it in that way. The point there being made was that the respondent’s solicitors were simply explaining the financial rationale for an expectation that the appellants’ security might be released if there had been an appropriate reduction of John’s indebtedness by timely and favourable sales of 4-5 blocks. In the event that situation did not ever arise.
In my opinion there is no profit in addressing each and every aspect of Mr Evans’ analysis of the evidence and the glosses which he sought to place upon it. Without intending any disrespect it really degenerated into an exercise of grasping at straws.
As my recitation of the facts readily discloses, this was, classically, a case in which the factual conclusions to be drawn necessarily stemmed from consideration of relative credibility of those witnesses who gave oral evidence. The facts adverted to by Mr Evans, taken alone, were, in no sense, sufficiently compelling to gainsay that proposition.
Quite apart from the distinct position of advantage enjoyed by the learned trial Judge in being able to hear the witnesses and assess the impact of their testimony, pure logic and commonsense, coupled with relevant uncontroverted documentary evidence combined, virtually, to demand the conclusions actually come to. Not only did the contemporaneous notes made by the bank officers tell their own story, but also the appellants credibility was utterly destroyed by their evidence of what was said to have occurred on and immediately prior to 11 August 1989. That evidence was quite contrary to the bank diary notes and their description of the white ”guarantee” signed by them is an almost pathetic and totally inaccurate rationalisation.
Moreover, it is beyond comprehension that, having sought and obtained independent legal advice and been aware of the stance of the respondent as set out in the copy diary note of 29 May 1990 sent to them (to which they say they objected), they would then have proceeded to execute the second mortgage on 7 June 1990 without having the representation allegedly made to them formally spelt out and recorded.
Furthermore, as Mr McNamara, of counsel for the respondent stressed, the execution of the second mortgage necessarily approbated the execution of the first, which, the appellants had contended, was signed in circumstances of deception by the respondent as to its nature.
Of course, as he emphasised, the 1990 security merely accommodated the land “swap” transaction desired by John and did not in any way alter the essential scope of the 1989 security. The evidence also strongly contra-indicated the positive assertion of the appellants that they were virtually under duress to sign the second mortgage because, without it, the respondent was not prepared to advance further monies to John. This was, quite clearly, not the basis for the registration of that security at all. It was merely required to facilitate the desired land swap and boundary adjustment.
Not only were the findings of the learned trial Judge fairly open to him - they were well nigh inevitable. In my view the decision appealed against was plainly correct.
I would dismiss the appeal.
Cox J
In my opinion this appeal should be dismissed. To succeed the appellants had to persuade this Court to overturn the learned trial Judge’s primary findings of fact. There were talking points available to the appellants, which Mr Evans properly emphasized, but they were not sufficient to undermine the judgment. I agree with the reasons of Olsson J.
Prior J
I also agree. In particular, I reject the argument advanced that the trial judge compromised his assessment of the plaintiff’s case. In my view, the judge’s credibility findings and primary findings of fact are unassailable.
The appeal should be dismissed.
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