Brun-Smits v Bank of Queensland Limited
[2015] FCA 362
•22 April 2015
FEDERAL COURT OF AUSTRALIA
Brun-Smits v Bank of Queensland Limited [2015] FCA 362
Citation: Brun-Smits v Bank of Queensland Limited [2015] FCA 362 Parties: MARINA BRUN-SMITS v BANK OF QUEENSLAND LIMITED (ACN 009 656 740) File number: NSD 1048 of 2014 Judge: FLICK J Date of judgment: 22 April 2015 Catchwords: PRACTICE AND PROCEDURE – swearing of false affidavits – unreliability of evidence – affidavits prepared by another person – onus of proof – referral of decision to Registrar of Court
CONTRACT – joint bank account – privity of contract – implied terms
BANKING – joint bank account – persons authorised to sign – withholding of interest
Legislation: Evidence Act 1995 (Cth), ss 128, 128(5) Cases cited: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, (2002) 209 CLR 95
Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Haythorpe v Rae [1972] VR 633
Johnston v Johnston [1991] 2 NZLR 608
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11, (2011) 243 CLR 361
McEvoy v Belfast Banking Co Ltd [1935] AC 24
Russell v Scott (1936) 55 CLR 440
Kauter v Hilton (1953) 90 CLR 86Hapgood M, Paget’s Law of Banking (13th ed, 2007)
Date of hearing: 25 March 2015 Date of last submissions: 15 April 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 53 Counsel for the Applicant: Mr M Young SC Solicitor for the Applicant: Licardy & Company Counsel for the Respondent: Mr S Couper SC with Mr J Gooley Solicitor for the Respondent: DibbsBarker
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1048 of 2014
BETWEEN: MARINA BRUN-SMITS
ApplicantAND: BANK OF QUEENSLAND LIMITED (ACN 009 656 740)
Respondent
JUDGE:
FLICK J
DATE OF ORDER:
22 APRIL 2015
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.Leave is granted to file the Further Amended Statement of Claim dated 30 March 2015.
2.Leave is granted to file the Amended Defence dated 8 April 2015.
3.A certificate be given to both the Applicant and Mr Leonardus Smits in respect to such of their evidence as was given during cross-examination pursuant to s 128 of the Evidence Act 1995 (Cth).
4.The proceeding is dismissed.
5.The Applicant is to pay the costs of the Respondent.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1048 of 2014
BETWEEN: MARINA BRUN-SMITS
ApplicantAND: BANK OF QUEENSLAND LIMITED (ACN 009 656 740)
Respondent
JUDGE:
FLICK J
DATE:
22 APRIL 2015
PLACE:
SYDNEY
REASONS FOR JUDGMENT
In December 2007 $3,000,000 was deposited into a new bank account held at the Bank of Queensland (the “Bank”).
The Applicant in the present proceeding, Ms Marina Brun-Smits, claims that half of these monies are hers.
In October 2008 all of the monies in this account were removed.
Ms Brun-Smits now seeks relief in the form, inter alia, of an order that the Bank pay her the sum of $1,500,000.
At the outset of the hearing, her claim was primarily founded upon:
·a “Deposit Contract” entered into in December 2007; and/or
·an estoppel – being a “conventional estoppel”, “estoppel by representation”, or “equitable proprietary estoppel”.
She then claimed that the bank account into which $3,000,000 was deposited in December 2007 was a “joint account” between herself and her former husband, Mr Leonardus Smits.
The hearing proceeded. Ms Brun-Smits and Mr Smits were cross-examined. They were not, with respect, impressive witnesses. Senior Counsel for Ms Brun-Smits foreshadowed that the claim may be amended.
After the hearing concluded, a Further Amended Statement of Claim was drafted and provided to the Bank. The Bank does not oppose leave being granted to amend and does not seek to adduce any further evidence. The claim now advanced for resolution:
·abandons any reliance upon the “Deposit Contract” previously said to have been entered into in December 2007;
·contends that Ms Brun-Smits and Mr Smits made an offer to the Bank, on or around 7 January 2008, to open a joint account and “hence be customers of the Bank legally entitled in equal shares to the debt”; and
·contends that that offer was accepted by the subsequent conduct of the Bank, namely its conduct in receiving the offer and not communicating that the offer had been rejected, and by its further conduct on 21 and 24 January 2008 and by further conduct on 13 and 18 February 2008, and conduct that occurred shortly after 21 June 2008.
The contention is that the offer made on or about 7 January 2008 was accepted by the Bank “on a date between 7 January 2008 and 30 June 2008…”. Ms Brun-Smits further contends that there was an implied term of the contract that the Bank would not appropriate her share of the monies without her instructions. The claim founded upon an estoppel has also been abandoned.
It is concluded that any relief to which Ms Brun-Smits is entitled must be founded, if at all, upon such inferences as may be drawn from the records maintained by the Bank and cannot be founded upon her own oral or affidavit evidence. The reliability of her evidence is such that it falls well short of establishing any entitlement to relief. Nor could her evidence find any further support in that of her former husband. The reliability of his evidence is also subject to the same criticism.
The claim against the Bank fails. The proceeding is to be dismissed with costs.
A joint account – a question of contract
It is not necessary in the present proceeding to elaborate on the law of joint banking accounts. The present proceeding is to be resolved by reference primarily to the facts. But some discussion of general principles may be prudent.
There was no disagreement between the parties that a “joint account” at a bank creates a joint right to the monies deposited: Russell v Scott (1936) 55 CLR 440. Starke J there relevantly concluded:
… A person who deposits money in a bank on a joint account vests the right to the debt or the chose in action in the persons in whose names it is deposited, and it carries with it the legal right to title by survivorship … The vesting of the right and title to the debt or chose in action takes effect immediately, and is not dependent upon the death of either of the persons in whose names the money has been deposited. In short it is not a testamentary disposition. There is nothing in the law to forbid a person depositing moneys in the joint names of himself and his family, or strangers: it is a form of gift, the effect of which has been already stated. But “the rule is well settled that where there is a transfer by a person into his own name jointly with that of a person who is not his child, or his adopted child, then there is prima facie a resulting trust for the transferor” … [(1936) 55 CLR at 448 to 449]
And, in the absence of terms permitting it to do so, a bank cannot discharge its debt to joint account holders except by authority of both parties: Fidock v Legal Profession Complaints Committee [2013] WASCA 108. Martin CJ, Newnes and Murphy JJA there observed:
[63] The deposit of funds into a bank account in joint names creates a debt owed by the bank to the account holders jointly ... Unless the terms of the account permit the bank to discharge the debt by releasing the funds to or at the direction of one of the parties to the account, the debt owed by the bank can only be discharged by payment to or with the authority of both parties jointly … The property represented by the account is properly described as a chose in action, being the right to enforce the debt as against the bank. If one of the account holders survives the other, ordinarily the entire interest in the account will pass to the survivor by the process of survivorship …
See also: Johnston v Johnston [1991] 2 NZLR 608 at 613 per Neazor J.
Nor was there any apparent disagreement between the parties that the question of whether an account is a joint account is to be resolved as a matter of contract: Hapgood M, Paget’s Law of Banking at 11.19 (13th ed, 2007).
Where one party opens an account with a bank in the names of both himself and another, any question as to privity of contract is to be resolved by determining whether the person who opened the account purported to do so on both his own behalf and on behalf of the other person: McEvoy v Belfast Banking Co Ltd [1935] AC 24. An account which is opened by one party on behalf of others is capable of ratification by those others: Fadden v Deputy Federal Commissioner of Taxation (1943) 68 CLR 76 at 82 to 83 per Williams J. Similarly, and irrespective of the name in which an account is opened, any question as to the persons entitled to the monies deposited in the account and entitled to draw upon those monies, is again to be determined as a matter of contract.
In determining the parties to a contract entered into when monies are deposited with a bank, it was relevant, in the past, to look to the “passbook” which was previously issued to the customer to determine the terms upon which the bank contracted with a depositor: cf. Kauter v Hilton (1953) 90 CLR 86 at 101 per Dixon CJ, Williams and Fullagar JJ; Haythorpe v Rae [1972] VR 633 at 637 per Crockett J. Nowadays, “passbooks” seem to be a thing of the past. But it is still relevant to look to such documents as a “Customer Authority” to assist in any resolution of identifying the parties to a deposit contract.
The bank records
If questions as to the reliability of the Applicant’s evidence and that of her former husband are presently placed to one side, the bank records of immediate relevance are within a limited compass. They are:
·a letter from the Bank dated 13 November 2007, being an “indicative letter” following a request for finance;
· a “Letter of set-off and other rights over deposits” dated 20 December 2007;
·a document titled “Customer Authority – New Account” dated 21 December 2007;
·a further document titled “Customer Authority – New Account” dated 3 January 2008 and received by the Bank on 7 January 2008;
·an e-mail from an officer of the Bank, Ms McGilvery, and forwarded to Mr Smits on 13 February 2008;
·a bank statement for the period from 21 December 2007 to 21 June 2008; and
·a bank statement for the period from 22 June 2008 to 17 October 2008.
Further bank records, including further e-mails and Terms and Conditions, may be left to one side.
The first three documents can be considered together. In November/December 2007 the Bank was approached with a view to it providing finance for a proposed property development. The development was to be financed by the Bank. Mr Smits was to provide a personal guarantee of $3,000,000. Monies were to be deposited with the Bank together with the “Letter of set-off”. The “Customer Authority” dated December 2007 identifies the “Account Title” as “Leonardus G. Smits”. Mr Smits had not signed the “Customer Authority”. The person authorised to operate the account was Ms Claire Cuthbert, a person to whom Mr Smits had granted a general power of attorney. The “Letter of set-off” signed by Mr Smits the previous day refers to an account “in the amount of $3,000,000 in the name of Leonardus Gerardus Smits” and contains the following declaration:
Declarations. You declare that you hold and will continue to hold the account:
(a)as beneficial owner, free of any interest of a third party; and
(b)in the same capacity as you have entered or will enter into each agreement covered by this letter.
This “Customer Authority” held by the Bank is stamped “Superseded”.
The document titled “Customer Authority – New Account” dated January 2008 identifies the “Account Title” as “Leo Smits Yeppoon Term Deposit”. The “Persons authorised to operate the account” are identified as Mr Smits and Ms Brun-Smits. Both have signed this Authority as persons who may operate the account.
The e-mail and the two bank statements can also be considered together. The e-mail to Mr Smits on 13 February 2008 states in part as follows:
Interest was withheld on 21/1/08, amount of $9,122.92. Can you provide Marina’s TFN so I can load also & then I’ll arrange a refund for you asap.
The bank statement for the period from 21 December 2007 to 21 June 2008 records “Int withheld” in the amount of $9,122.92 on 21 January 2008 and a “Withholding tax adjustment” of $9,122.92 on 18 February 2008. Both bank statements are addressed to Mr Smits but both show the “Account Details” as “Mr Leonardus G Smits and Mrs Marina Brun-Smits”.
The evidence of the Applicant and her former husband
In addition to such inferences as may be drawn from the bank records themselves, both the Applicant and her former husband prepared affidavits in support of the claims made by the Applicant.
Without attempting to be exhaustive, Ms Brun-Smits’ evidence was potentially relevant to her claim in contract and her former claim to an estoppel against the Bank. The evidence of her former husband was also potentially relevant, (for example) in support of his intention when opening the account in December 2007.
Ms Brun-Smits, for example, referred to the two bank statements and continued on to state:
[19] … Leo showed me the first of those statements around the end of June 2008. I checked it to make sure that the Account was in both of our names, which is what I expected it to be. I noticed that the statement said “Account Details Mr Leonardus G Smits and Ms Marina Brun-Smits”. Upon reading that, it was confirmed in my mind that the Account was in both names.
[20] If the Account Statement had not been in both names, I would have been alarmed by that fact and formed the view that Leo was trying to cheat me of my share of the $3,000,000. I would then have engaged lawyers to advise me and to commence proceedings in the Family Court (or whichever other court my lawyers told me was most appropriate) against Leo and the Bank to restrain both Leo and the Bank from taking my share of the money. As I saw, however, that the Account was in both names I did not take this step as I believed that in due course I would receive my $1,500,000 as Leo had promised to me.
The lack of reliability in the “evidence” of Ms Brun-Smits springs (in part) from the fact that it was not her “evidence” at all. Although she gave an account of events in her affidavit, the conclusion that inevitably must be reached is that the account was prepared by her former husband.
Although Ms Brun-Smits did assert that some conversations set forth in her affidavit coincided with her own recollection of events, the account she advanced was one unquestionably prepared by her former husband. Thus, one exchange with her cross-examiner was as follows:
It’s the case, isn’t it, that before this affidavit was prepared in 2014, Leo didn’t come to you and ask you what you could recall about the conversation, did he?‑‑‑No, he didn’t.
No. He just came to you and said: “here’s an affidavit. I’ve set out a conversation. You sign it”. Correct?‑‑‑Yes.
And is what you say that, coincidentally, what he had set out without consulting you reflected your memory of the conversation?‑‑‑Yes.
So much emerged at a number of times during her cross-examination. One exchange at the very end of her cross-examination pursued the question of her involvement with her legal representatives and summarised the position as follows:
And then did you actually speak to any lawyer about starting these proceedings?‑‑‑No.
You left that to Leo?‑‑‑Yes.
All right. So Leo dealt with the lawyers?‑‑‑Yes.
And then Leo came to you with an affidavit and said, “Sign this.” Is that right?‑‑‑Yes.
All right. And you signed it?‑‑‑Yes.
And that’s the extent of your involvement?‑‑‑Yes.
Perhaps even more disturbing is the conclusion that Ms Brun-Smits was prepared to give any evidence she thought would support her case. Thus, during one exchange with her cross-examiner she gave the following account:
And you don’t know whether the contents of the affidavit are true or not, correct?‑‑‑Not correct. Some I did, and some I didn’t.
Some you did, and some you didn’t?‑‑‑Mmm.
But you didn’t mind about swearing to things if you didn’t know they were correct; is that right?‑‑‑Yes.
All right. You saw this affidavit as being a necessary step to trying to get $1.5 million from the bank, correct?‑‑‑Yes.
All right. And in order to try to get that money you were prepared to swear to things that you didn’t know to be true, correct?‑‑‑Yes.
The fact that an affidavit may have been prepared by another potentially interested party, and may have been signed without much consideration being given to its contents, does not necessarily mean that the entirety of its content is either false or without substance. But difficulty arises when considering the weight which should be given to an affidavit prepared in such a manner. Considering Ms Brun-Smits’ evidence in its entirety, the conclusion has comfortably been reached that her evidence is so lacking in reliability that it alone cannot be relied upon to discharge any onus of proof.
The evidence of Mr Smits, it is further concluded, is no more reliable.
Mr Smits, in his affidavit, refers to the January 2008 Customer Authority and states:
[15] … I have signed it twice and initialled it once, and the Applicant has signed it once. I now realise that I could have (and probably should have) had the Applicant also sign it a second time in the centre of the page and initial it, but at that time I did not think that was necessary in order to set up an account in our joint names, which is what I thought I had done. I had also produced to the Bank the necessary ID Documentation to provide 110 points for identifying both the applicant and me.
If accepted, this evidence could support a conclusion that a joint account was created in January 2008.
But one example of the unreliability of evidence that Mr Smits is prepared to give to a superior Court is an exchange with Senior Counsel for the Bank, concerning statements he made in a separate proceeding in which he was involved in the Supreme Court of Queensland in 2008. There in question was an application for security for costs which was being resisted by Mr Smits. His solicitors in that proceeding had prepared a draft Statement of Assets and Liabilities in which he stated (inter alia):
Cash at bank - $3,000,000 – 12 month Term Deposit with Bank of Queensland
The response from the opposing solicitors in that litigation stated that “this correspondence does nothing to relieve our client’s concerns regarding security for costs” because (inter alia) “the account is in the name of Mr Leonardus G Smits and Mrs Marina Brun-Smits…”. An affidavit sworn by Mr Smits in that proceeding expressly referred to this response and stated: “I deny the comments…”. Mr Smits, of course, in that proceeding was presumably seeking to advance the proposition that he was a person of considerable value in his own right, and to the exclusion of Ms Brun-Smits. That was, obviously enough, a different forensic objective to that sought to be achieved in this Court. The difference caught the attention of his cross-examiner. One exchange focussed attention upon the contents of the exchanged correspondence between the solicitors and was as follows:
… Look at item 2 under the heading Assets:
Cash at bank. $3 million. 12 months term deposit with Bank of Queensland valued at ‑ ‑ ‑
In the right-hand column.
‑ ‑ ‑ $3 million.
You see that?‑‑‑Yes, I do.
That is a statement that the $3 million in the term deposit with Bank of Queensland is owned by you, is it not?‑‑‑It is.
And that was the truth, wasn’t it?‑‑‑No, it’s not.
The cross-examination continued on to explore the possible explanation for the untrue statement as follows:
And do you accept that it asserts that you owned the $3 million in the term deposit?‑‑‑Yes, I do.
All right. And do you say that was false?‑‑‑Yes, it was not correct.
All right. And why was it, do you say, that in the draft statement of assets and liabilities you falsely claimed that you owned the $3 million in the term deposit?‑‑‑Because I didn’t focus on the fact that it was – that 1.5 was owned beneficially by my wife.
Another exchange focussed Mr Smits’ attention upon his denial in his affidavit. That exchange took Mr Smits back to the “comment” in the correspondence and proceeded as follows:
… Comment 1C is:
The statement shows the account is in the name of Mr Leonardus G Smits and Mrs Marina Brun-Smits.
And do you agree with me that the basis for your denial appears in the next line:
My wife was a signatory to the account.
?‑‑‑She was signatory to the account.
What paragraph 25 of your affidavit says, in substance, is this, is it not, Mr Smits: that the account was not in the name of you and your wife; your wife was merely a signatory to the account, so that item 1C was incorrect?‑‑‑It conveys that inference.
Yes. And that’s the inference you intended it to convey, isn’t it?‑‑‑Yes, and it was false.
All right. So are you saying that you deliberately swore a false affidavit in those proceedings?‑‑‑Yes, I am.
The cross-examination was interrupted with an inquiry made of Senior Counsel for the Applicant who stated that “in view of the witness’ long experience as a legal practitioner there’s no warning that he needs to hear…”. The cross-examination continued:
Why did you deliberately swear a false affidavit in those proceedings, Mr Smits?‑‑‑Because the proceedings – in the proceedings the security for costs was being sought, and I was trying to put a favourable gloss on my net asset position which I thought was more than adequate to cover the security for costs sought by the other side, and I thought I was being harassed.
And I just want to know what you’re saying. Are you saying that because you felt you were being harassed, that justified you perjuring yourself?‑‑‑No, that was the explanation.
I see. Is it right to say, Mr Smits, that your approach to swearing affidavits is that you will say whatever is necessary to achieve the object you are seeking to achieve?‑‑‑No, it’s not.
Contrary to the last answer provided by Mr Smits, the proposition being advanced by his cross-examiner is accepted – Mr Smits, like Ms Brun-Smits, it is concluded, was a witness prepared to give any such evidence as he considered best advanced his interests. And if that meant giving evidence known to be untrue, it is concluded that he was prepared to do so.
Both Ms Brun-Smits and Mr Smits “willingly” gave their evidence, including their evidence to which objection could have been taken pursuant to s 128 of the Evidence Act1995 (Cth). But s 128(5) provides that “the court must cause the witness to be given a certificate under this section in respect of” that evidence. The sub-section permits of no discretion not to give a certificate. Such certificates should now be given in respect to so much of their evidence as was given during cross-examination.
The absence of any agreement between the Applicant and Mr Smits
The characterisation of the evidence of both Ms Brun-Smits and her former husband as unreliable has led to the conclusion that Ms Brun-Smits has not proved, on the balance of probabilities, any agreement reached between her and her former husband that $3,000,000 would be invested with the Bank and be shared equally.
Nor has such evidence established any further agreement – or contract – as between Ms Bruns-Smits and her former husband (on the one hand) and the Bank (on the other).
Indeed, if necessary, it would have been concluded that there was no such agreement between the two of them. In her affidavit, Ms Brun-Smits gave an account of a series of conversations with her former husband concerning the purchase of a property by their company Plantoy Pty Ltd, the repayment of a loan and “leave you holding about $1,500,000 in a cash deposit…”. She was cross-examined on this part of her affidavit and the following exchange occurred:
Would it be fair to say that you said nothing about Plantoy owing money to both of you in 2007? ‑‑‑True.
So this is just a fiction which you’ve signed up to in your affidavit. Correct? ‑‑‑No because it wouldn’t be a fiction.
Well, change the words. Let’s be clear. You have no recollection of ever talking to Leo in 2007 about the idea that Plantoy owed both of you a lot of money. Correct? ‑‑‑Well, I never used Plantoy.
Never used? ‑‑‑As the – no, I wouldn’t have referred to Plantoy.
And is that because you had no idea whether Plantoy owed you money or not? ‑‑‑True.
All right. And is it fair to say you didn’t even know what the company Plantoy was in late 2007? ‑‑‑I knew it was a service company for the business we had.
All right. So whatever you talked about with Leo, you certainly didn’t say to him “Plantoy owes you both a lot of money”. Correct? ‑‑‑Correct.
Why did you swear a false affidavit, Ms Brun-Smits? ‑‑‑Well, I did.
Yes. Why? ‑‑‑I did. Because I was asked to swear an affidavit.
Mr Smits’ account of the same series of conversations in which an agreement with his former wife was said to have been reached is, with respect, no more reliable.
The conclusion that no agreement was reached between Ms Brun-Smits and Mr Smits as to the investment of monies that they could share “equally”, undermines:
·any separate finding (albeit a finding that is no longer sought) that there was an intention on the part of Mr Smits to open a joint account when initially depositing the $3,000,000 in December 2007; and
·any further conclusion that there ever was an intention to open a joint account either in December 2007 or January 2008 – or, indeed, at any later point of time.
The documentary claim in contract: December 2007 -v- January 2008?
If the evidence of the Applicant and her former husband is, accordingly, placed to one side – as not in itself satisfying any onus of proof – the prospect nevertheless remains of the Applicant’s onus of proof being discharged by reference to such inferences as may be drawn from the bank records.
What was previously the focus of Ms Brun-Smits’ case, namely the December 2007 Deposit Contract, now seems to have been relegated in her current pleading to relative obscurity. That may be because it was a contractual relationship between Mr Smits and the Bank which of itself permitted no inferences favourable to her claims. It may also be because the cross-examination of both Ms Brun-Smits and Mr Smits may have led Senior Counsel for Ms Brun-Smits to seek recourse in the safety of the documents rather than the perilous course of seeking to establish the credibility of his witnesses.
But whatever may be the reason for the shift in emphasis, from the December 2007 Deposit Contract to the contract now relied upon, perhaps matters not. The December 2007 Deposit Contract, however, cannot be so summarily placed to one side as is the wont of Ms Brun-Smits.
At the outset, there can be no doubting that a bank account was opened in December 2007. Monies were deposited. A contract of some kind was then entered into.
If attention is confined to the events in December 2007, there is no basis upon which any inference could have been drawn from the bank records that that account was then created as a “joint account”. Ms Brun-Smits is not referred to in the “Account Title” or as a person authorised to operate the account. The monies were deposited into the account by Mr Smits alone and as security for the Bank providing finance for a property development. And any conclusion that the deposit of monies in December 2007 was an account opened by Mr Smits on his and his wife’s behalf, would be inconsistent with the terms of the “declaration” contained within the Letter of set-off.
Any entitlement on the part of Ms Brun-Smits to the monies in the account first opened in December 2007 must necessarily depend upon either a variation of the terms upon which the monies were initially deposited or upon an entirely new contract being entered into between Ms Brun-Smits and Mr Smits on the one hand, and the Bank on the other. The Further Amended Statement of Claim, accordingly, pleads a new offer in January 2008, and acceptance – but there remains a suggestion that there may also be some reliance upon a “variation” of the former contract.
Whatever strength the case as now pleaded may have is to be found essentially in:
·the fact that the Customer Authority – New Account signed in December 2007 is marked within the bank records as “Superseded”;
·the fact that the Customer Authority – New Account signed on 3 January and received by the Bank on 7 January 2008 identifies both Ms Brun-Smits and Mr Smits as persons authorised to operate the account;
·the e-mail forwarded in February 2008 and the adjustment in respect to withholding tax; and
·the two bank statements – both statements referring to Mr Smits and Ms Bruns-Smits in the “Account Details”.
These documents do permit some inferences to support the claims made by Ms Brun-Smits.
But her claims are rejected.
The Further Amended Statement of Claim identifies the January 2008 Customer Authority – New Account as the “offer”. There are two reasons for rejecting this characterisation of the January 2008 Customer Authority as an “offer”, namely:
·there is nothing about the form of the document which characterises it as an “offer”, let alone an “offer” intended to so substantially change the terms and conditions upon which the monies were deposited in December 2007 – indeed, the January 2008 document still sets forth the “Account Title” as “Leo Smits” alone; and
·the document was not intended by Ms Brun-Smits, it is concluded, to be an offer or a document in some way preliminary to the establishment of a joint account.
Although the former reason is sufficient in itself to reject the claim that a new offer was made in January 2008, it is prudent expressly to reject Ms Brun-Smits’ “assumption” that the account became a “joint account”. She was cross-examined about the form of the January 2008 document. The form of this document was compared with another document she had signed in respect to a “Web Savings” Account. This exchange was as follows:
You will see that this is another Bank of Queensland Customer Authority – New Account. The 28 March 2008. Do you see that?‑‑‑Yes.
And it’s for a Web Saving account, do you see that in the top right-hand corner? Product name: Web Saving?‑‑‑Yes.
And you will see the account title is Leo G Smits and Marina Brun-Smits?‑‑‑Yes.
And you will see that in this document you’ve signed in two places. The top place and then, again, for the persons authorised to operate the account?‑‑‑Yes.
Now, you signed this document in the top section because you understood you were one of the account holders, correct?‑‑‑Correct.
And that it was the account holder who was supposed to sign in the top section, correct?‑‑‑Yes.
Coming back to the other document, the Leo Smits Yeppoon Term Deposit, you didn’t sign the top section because you knew you weren’t an account holder, correct?‑‑‑No. That’s not correct. I – I assumed I was.
You assumed you were?‑‑‑Yes.
To the extent that Ms Brun-Smits gave any thought to what she was signing in January 2008, no finding can be made that she intended the document she signed to form an offer to the Bank to create a new joint account. Her evidence that she “assumed” she did so is rejected. Moreover, it is highly questionable whether a common understanding – or any shared “assumption” between Ms Brun-Smits and her former husband – could translate (without more) into an intention on the part of Mr Smits (or Ms Brun-Smits) to enter into a contractual relationship with the Bank on the basis of that uncommunicated “assumption”. When signing the “Customer Authority” in January 2008, it is concluded that there was no intention on the part of either Mr Smits or Ms Brun-Smits to open or create a joint account in which both would share equally.
Any “objective assessment of the state of affairs” (cf. Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8 at [25], (2002) 209 CLR 95 at 105 per Gaudron, McHugh, Hayne and Callinan JJ), including the “Customer Authority” in January 2008, does not support a conclusion that that document formed any offer to enter contractual relations.
It may be further noted that reservations would have been expressed before concluding that as comparatively simple a contract relationship as the opening of a bank account was susceptible to such a complex acceptance – an acceptance founded upon a series of discrete factual events spread over a six month period. The reliance in the Further Amended Statement of Claim upon the “conduct” there identified between 7 January 2008 and “on or shortly after 21 June 2008” has, with respect, all of the hall-marks of the now-abandoned estoppel case being recast under the guise of contractual “acceptance”.
The monies as security -v- an implied term
Irrespective of any success on the part of Ms Brun-Smits in establishing the bank account as a joint account, the Bank further contends that her case is otherwise fatally flawed.
Senior Counsel for the Bank contended that Ms Brun-Smits knew that any interest she asserted she had in the bank account was always subject to the right of the Bank to employ those monies as security for the monies it had advanced to her former husband.
So much emerged from the following exchange during her cross-examination:
You understood, Ms Brun-Smits, didn’t you, that this money was security for a loan – the loan might default?‑‑‑Yes.
And you understood that if the loan defaulted, the bank might take that $3 million, correct?‑‑‑Yes.
And you understood that before the money was deposited into the bank account, correct?‑‑‑Yes.
All right. And you understood that it was likely that part of the deal Leo would do with the bank was an agreement that if there was a default, the bank would take the money, correct?‑‑‑Yes.
And you agreed to Leo depositing the money on that basis, correct?‑‑‑Yes.
Had it been necessary to resolve Ms Brun-Smits’ contention that the contract the subject of the January 2008 “Customer Authority” was subject to an implied term, that contention would also have been rejected. No such implied term would have been necessary to give “business efficacy” to that contract. Moreover, any implied term of the kind advanced by Ms Brun-Smits would be a term contrary both to:
·her own understanding as to the terms upon which the Bank held the monies deposited; and
·the right to employ those monies as security given by the December 2007 “Letter of set-off”.
Rather than giving “business efficacy” to the contract (cf. BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283), the implied term sought to be advanced by Ms Brun-Smits would undermine the contractual relationship first entered into in December 2007.
CONCLUSIONS
The claim made by the Applicant to $1,500,000 fails.
The bank account into which the $3,000,000 was deposited in December 2007 was opened in the name of Mr Smits alone. There was no subsequent “offer” made in January 2008 to transform it into a joint account. That was not the intention of Mr Smits in December 2007, or afterwards. The account remained an account in his name alone. The January 2008 Customer Authority merely clothed Ms Brun-Smits with authority to operate the account. To that extent the earlier Authority was “superseded”.
Even if a contrary conclusion had been reached such that the account became a joint account at some time between January and June 2008, it was certainly not a joint account subject to the term which Ms Brun-Smits sought to imply. Any interest or entitlement she may have had to monies in the account was always one subject to the Bank’s right to take the entirety of the monies in the event of default. And that was what in fact happened.
The proceeding should be dismissed. There is no reason why costs should not follow the event.
One final matter concerns the evidence given by Ms Brun-Smits and her former husband. Witnesses in proceedings before superior Courts of record routinely either swear to the truth of the statements that are made or make an affirmation as to the truth of the evidence to be given. A conclusion that a witness has not told the truth is a serious matter. So, too, is a conclusion that a witness is prepared to give any evidence which will suit the claim being advanced for resolution – and to do so irrespective of the truth of that evidence. The giving of false evidence or the giving of evidence which is not the “whole truth” (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11 at [62], (2011) 243 CLR 361 at 384 per Heydon, Crennan and Bell JJ) undermines the ability of a Court properly and justly to resolve a dispute according to law. The giving of false evidence, or evidence that is not the truth, fundamentally undermines the proper administration of justice. It is a matter which, it is respectfully considered, goes beyond the private interests of the parties to the proceeding in which the evidence is given. There is a much broader public interest involved. Given the gravity of the findings made in respect to the evidence in this case, it is proposed to bring these reasons for decision to the attention of the Registrar of this Court. It will remain a matter for him to take such further action as he sees fit.
THE ORDERS OF THE COURT ARE:
1.Leave is granted to file the Further Amended Statement of Claim dated 30 March 2015.
2.Leave is granted to file the Amended Defence dated 8 April 2015.
3.A certificate be given to both the Applicant and Mr Leonardus Smits in respect to such of their evidence as was given during cross-examination pursuant to s 128 of the Evidence Act 1995 (Cth).
4.The proceeding is dismissed.
5.The Applicant is to pay the costs of the Respondent.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 22 April 2015
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