Chandra & Anor v Perpetual Trustee Victoria Limited & Anor (No 2)

[2006] NSWSC 1344

CITATION:	Chandra & Anor v Perpetual Trustee Victoria Limited & Anor (No 2) [2006] NSWSC 1344
HEARING DATE(S):	06/10/06
JURISDICTION:	Equity
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	10/06/2006
DECISION:	Orders for discovery made
CATCHWORDS:	PROCEDURE – Discovery – whether categories of documents relevant to fact in issue – where documents may corroborate or contradict facts asserted in allegedly forged document – documents may rationally affect assessment of allegation of forgery
LEGISLATION CITED:	Uniform Civil Procedure Rules 2005 (NSW), rr 21.1(2), 21.2
PARTIES:	Fatah Chandra (P1) Adje Srikandi (P2) Perpetual Trustees Victoria Ltd ACN 004 027 258 (D1) The Department of Lands (D2) Richard Stephen Miller (D3)
FILE NUMBER(S):	SC 3261/06
COUNSEL:	Mr Grieve QC w Ms Coulton (P) Mr Parker SC (D1) Mr Shields (D3)
SOLICITORS:	George Sten & Co (P) Allens Arthur Robinson Solicitors (D1) Ebsworth & Ebsworth Lawyers (D3)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Friday 6 October 2006

3261/06 Fatah Chandra & Anor v Perpetual Trustee Victoria Limited & Anor

JUDGMENT (ex tempore)

1 HIS HONOUR: By Notice of Motion filed on 4 September 2006 the first defendant, Perpetual Trustee Victoria Limited, seeks an order in the following terms:-

An order that the plaintiffs provide discovery of the following categories of documents to the first defendant by 15 September 2006:

(a) All documents including but not limited to, tax returns, financial statements and registration papers in existence as at April 2005 showing:
(i) the then annual income of each of the plaintiffs from Chandra & Sons Enterprises Pty Ltd;
(ii) the value of the plaintiffs’ interests in Chandra & Sons Enterprises Pty Ltd;
(iii) any Honda motor vehicle then owned by either of the plaintiffs and its value;
(iv) the amounts held in any savings accounts held by either of the plaintiffs; and
(v) the value of the plaintiffs’ restaurant at Kingsford, NSW.
(b) All documents relating to, recording or referring to the mortgage that is registered in favour of the first defendant on the property at 23A Jellicoe Avenue, Kingsford NSW (the Property) and the loan or loans secured or purportedly secured by that mortgage;
(c) Any certificate of title for the Property issued prior to 4 April 2005;
(d) All documents relating, recording, referring to or evidencing any meetings, discussions or dealings between or involving:
(i) either or both of the plaintiffs and Joey Pan; and
(ii) Sun Chandra and Joey Pan, concerning any propose4d investment loan or other financial transaction.

2 By Notice of Motion filed on 18 September 2006, the third defendant, Stephen Miller, seeks an order in the following terms:-

An order that the plaintiffs provide discovery of the following categories of documents to the third defendant by 6 October 2006;
(a) all documents relating to, recording or referring to the mortgage that is registered in favour of the first defendant on the property at 23A Jellicoe Avenue, Kingsford, NSW (Property) and the loan or loans secured or purportedly secured by that mortgage;
(b) any certificate of title for the Property issued prior to 4 April 2005;
(c) all documents relating, recording, referring to or evidencing any meetings, discussions or dealings between or involving:
(i) either or both of the plaintiffs and Joey Pan; and
(ii) Sun Chandra and Joey Pan, concerning any proposed investment loan or other financial transaction.

(d) any original or copy versions of the following documents:
(i) rate notice issued by Randwick City Council dated 14 July 2003 in relation to the Property; and
(ii) overdue instalment notice issued by Randwick City Council dated 14 March 205 in relation to the Property.

3 The applications for discovery are opposed by the plaintiff. Discovery is now governed by Uniform Civil Procedure Rules 2005 (NSW), r 21.2, which provides that the Court may order that a party to proceedings must give discovery to another of documents within a class or classes specified in the order, described by relevance to one or more facts in issue, or by description of the nature of documents and the period within which they were brought into existence, or in such other manner as the Court considers appropriate. A document is to be taken to be relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence [UCPR, r 21.1(2)].

4 The allegations of fact in these proceedings to which the documents, discovery of which is sought, are said to be relevant are those contained in paras 3 and 10 of the Statement of Claim, namely, that signatures purporting to be those of the plaintiffs were forged on a form of mortgage of their property, and that no money was at any time lent by the first defendant or any other person to the plaintiffs under the forged mortgage.

5 The first allegation, although characterised in the submissions of Perpetual as an allegation of fraud, is not really that; it is an allegation of forgery, namely that the signatures that appear on the mortgage purporting to be those of the plaintiffs are in fact not the plaintiffs’ signatures. The allegation in paragragh 10 implicitly goes somewhat further, and I think should be taken as including an allegation that no moneys were advanced by Perpetual to the plaintiffs (or any person authorised by them) of the type described in the mortgage.

6 The first category of documents, discovery of which is sought by Perpetual, are documents which might bear on the accuracy of assertions contained in a “personal financial statement” which was provided to Perpetual - presumably by the alleged fraudster, Mr Pan - when application was made for the loan. The plaintiffs deny that the signatures on the application, like the signatures on the statutory declaration which was used to obtain a new certificate of title, and those on the mortgage itself, were theirs.

7 Although at first I thought there was considerable difficulty in seeing how the documents sought in that category could illuminate the issues, on consideration it seems to me that it would be fairly standard cross-examination of the plaintiffs, on the allegation of forgery, to take them through each allegation of fact contained in the personal financial statement, so that if the plaintiffs acknowledged that they indeed believed 23A Jellicoe Avenue was worth $1.2 million, and they indeed had savings of $63,000, and they indeed had a Honda they believed was worth $25,000, and they indeed had a restaurant at Kingsford which they believed was worth $800,000, and they indeed were receiving a gross income of $240,000 per annum from their company, and the answers to the five questions at the foot of AX02 were answers which, if asked, they would truthfully have given, then that line of cross-examination would culminate in the proposition that, given their agreement that in multiple respects the document contained material that, if asked, they would have given, the denial that it was not sourced in them was not credible. While such a denial might, of course, be true, nonetheless the consistency of the assertions of fact in the document with the truth, particularly if the matter were peculiarly within the plaintiff’s own knowledge, would be a matter which could rationally affect the assessment of the plaintiffs’ denial that the signatures were theirs. So would the fact – if it be so – that they had (as the Statutory Declaration asserted) lost the Certificate of Title. On that basis, I have concluded that the documents in categories 2(a) and (c) of the first defendant’s Notice of Motion are properly within the classes of documents in respect of which discovery can and should be ordered.

8 So far as those in categories (b) and (d) are concerned, it is reasonably clear that documents referring to the mortgage the subject of the proceedings would potentially be relevant; and given that the first plaintiff has met with the alleged fraudster – albeit, he says, in a meeting which had nothing to do with the subject matter of these proceedings - the fact and content of discussions between the first plaintiff and the person who happened to practice the alleged fraud must be of potential relevance, in revealing any pre-existing connection, and/or how the alleged fraudster came into possession of relevant information or material, and/or what knowledge the plaintiff had of his activities.

9 The exercise of deciding whether or not to order discovery depends, in part, on a balance between the burden which the proposed discovery will impose, and the relevance or potential importance of the documents to the case. Here, no submission is made, nor any evidence adduced, that discovery to the extent sought would be onerous.

10 It follows that the orders for discovery as sought should be made. I make Order 2 in the first defendant’s Notice of Motion. I make Order 5 in the third defendant’s Notice of Motion. I order that the plaintiffs pay the first and third defendants’ costs of the motion.

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