Collopy v Commonwealth Bank of Australia

[2019] WASCA 97

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   COLLOPY  -v- COMMONWEALTH BANK OF AUSTRALIA [2019] WASCA 97

CORAM:   MITCHELL JA

BEECH JA

PRITCHARD JA

HEARD:   17 JUNE 2019

DELIVERED          :   5 JULY 2019

FILE NO/S:   CACV 39 of 2018

BETWEEN:   SALLY ANNE COLLOPY ALSO KNOWN AS SALLY ANNE LAVATER

First Appellant

SALLY ANNE COLLOPY ALSO KNOWN AS SALLY ANNE LAVATER AS THE ADMINISTRATOR OF THE ESTATE OF MARK DAMIEN COLLOPY

Second Appellant

AND

COMMONWEALTH BANK OF AUSTRALIA

Respondent

ON APPEAL FROM:

Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA

Coram:   KENNETH MARTIN J

Citation: COMMONWEALTH BANK OF AUSTRALIA -v- SALLY ANNE COLLOPY ALSO KNOWN AS SALLY ANNE LAVATER AS ADMINISTRATOR OF THE ESTATE OF MARK DAMIAN COLLOPY [2018] WASC 77

File Number            :   CIV 1231 of 2016

Catchwords:

Banking and finance - Whether bank has established that funds were advanced pursuant to loan agreement - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 79C

Result:

Applications dismissed
Appeal dismissed

Category:    B

Representation:

Counsel:

First Appellant	:	In person
Second Appellant	:	In person
Respondent	:	Ms C H Thompson

Solicitors:

First Appellant	:	In person
Second Appellant	:	In person
Respondent	:	Dentons Australia

Case(s) referred to in decision(s):

Agricultural Land Management Ltd v Jackson [2013] WASC 464

ASIC v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181

ASIC v Rich [2005] NSWSC 417; (2005) 216 ALR 320

Beamish v The State of Western Australia [2005] WASCA 62

Commonwealth Bank of Australia v Oberdan [2000] SASC 428

Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643

Donohue v The Director of Public Prosecutions (WA) [2011] WASCA 239

George 218 Pty Ltd v Bank of Queensland [2015] WASC 434; (2015) 303 FLR 231

National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309

Sangora Holdings Pty Ltd v Dunstan (1996) 16 WAR 552

Saunders v Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226

St George Bank Ltd v Emery [2004] WASC 35

JUDGMENT OF THE COURT:

Summary

1. The appellant (Ms Lavater) and her now deceased husband (Mr Collopy) entered into a number of loan agreements with the respondent (the Bank), secured against the property at which Ms Lavater currently resides.  The Bank alleged that Ms Lavater was in default of the agreements, and commenced proceedings in the general division of the Supreme Court.  On 21 March 2018, the Bank obtained judgment after trial for possession of the property and payment of $1,346,973.91.

2. Ms Lavater now appeals against the trial judge's decision.  A number of matters were agitated at trial, including the authenticity of Ms Lavater's signature on financial documents.  However, the grounds of appeal are confined to challenging the trial judge's finding that money was advanced under the loans.  For the reasons which follow, Ms Lavater's grounds of appeal are not established and the appeal must be dismissed.

Parties, properties and loans

1. The appellant generally goes by the name Sally Lavater.  However, in a number of documents in evidence in this appeal, she is referred to as Sally Collopy.  We shall refer to the appellant as Ms Lavater in these reasons, irrespective of which name was used in the evidence to which reference is made.  Ms Lavater was self-represented in this appeal, although she engaged counsel who appeared for her at trial.

2. The appellant was married to Mr Collopy at all material times up until his tragic death on 11 April 2007 in Ghana.

3. It is uncontroversial that the Bank is the successor in title to Bankwest (previously the R&I Bank) with which the loan agreements at issue in this appeal were reached.  As it is unnecessary to distinguish between the entities for the purposes of this appeal, they will all simply be referred to as 'the Bank'.

4. The loans in this case have been relevantly secured against two parcels of land.  One is the residence of Ms Lavater in Cale Street, Como, on which a new house was constructed in about 2003 - 2005 (Cale Street Property).  The second secured property was a strata unit in Eric Street, Como, which Mr Collopy and Ms Lavater acquired in 1992 and which Ms Lavater sold in 2008 (Eric Street Property).

5. It is common ground that Mr Collopy and Ms Lavater granted the Bank an 'all moneys' mortgage over the Cale Street Property on 1 May 1998 (Cale Street Mortgage).

6. There are three loan agreements at issue in these proceedings, which the trial judge designated as Loans A, B and C.  Loan A relates to an account number ending in '662-3'.  Loan B relates to an account number ending in '040-0'.  Loan C relates to an account number ending in '161‑0'.

Facts found by the trial judge

1. The trial judge made the following findings of fact.

2. Mr Collopy and Ms Lavater acquired the Eric Street Property without any mortgage in about January 1992.[1] 

   [1] Primary decision [27], [29].

3. In January 1994, a mortgage was granted to the Bank over the Eric Street Property, and two other properties Mr Collopy and Ms Lavater owned (Eric Street Mortgage).[2] 

   [2] Primary decision [27], [29], exhibit 1.1 (Green AB 47 - 50).

4. Mr Collopy and Ms Lavater jointly acquired the Cale Street Property in April 1998, with the assistance of funds advanced by the Bank.  The advance was secured by the Cale Street Mortgage granted on 1 May 1998,[3] as well as the Eric Street Mortgage.[4]

   [3] Exhibit 1.5 (Green AB 81 - 84).

   [4] Primary decision [30].

5. In 2002, there was a family plan to demolish the existing residence at the Cale Street Property, and rebuild a new home to be constructed by Webb & Brown-Neaves.  Ms Lavater knew of, and was involved in, the demolition and rebuild project, especially when the family moved to rental accommodation to facilitate the project.[5] 

   [5] Primary decision [49].

6. Mr Collopy and Ms Lavater signed a contract with Webb & Brown‑Neaves for the construction of a house at the Cale Street Property.  The contract indicated that it was signed on 18 March 2002, although the date '8/5/02' is written next to Mr Collopy's signature.  The contract price was $279,239 to be paid by a series of progress payments.[6]

   [6] Primary decision [77], exhibit 1.9 (Green AB 85 - 99).

7. On 9 September 2002, Mr Collopy and Ms Lavater signed home loan contracts for Loan A and Loan B.  Loan A was for a maximum amount of credit of $312,445.90 to be used to 'assist with construction of owner occupied dwelling, finance mortgage protection and fees'.  Loan B was for an amount of credit of $179,950.69 to 'assist with refinance of existing BankWest debt and finance mortgage protection'.[7]

   [7] Primary decision [75] - [76], [78], [90] - [92]; exhibits 1.14 (Green AB 130 - 149) and 1.15 (Green AB 150 - 167).

8. Also on 9 September 2002, Mr Collopy and Ms Lavater signed a 'Mortgagor's / Guarantor's Consent'.  By this form, they agreed that the Cale Street Mortgage and the Eric Street Mortgage would extend to cover and secure the new lending commitments for Loan A and Loan B.[8]

   [8] Primary decision [81], exhibit 1.16 (Green AB 168).

9. As already mentioned, a new home was built at the Cale Street Property sometime between 2003 and 2005 by Webb & Brown-Neaves.[9]

   [9] Primary decision [55].

10. On 18 December 2003, Mr Collopy signed a home loan contract for Loan C, with a credit limit of $100,000.[10]  On 18 or 19 December 2003, Ms Lavater signed a consumer guarantee and indemnity in respect of Loan C (the Guarantee).[11]  Also on 18 December 2003, Mr Collopy and Ms Lavater both signed a 'Mortgagor's / Guarantor's Consent', agreeing that the Cale Street Mortgage and the Eric Street Mortgage would extend to cover and secure the new lending commitments for Loan C.[12]

    [10] Primary decision [102], exhibit 1.27 (Green AB 179 - 183).

    [11] Primary decision [106], [109], exhibit 1.28 (Green AB 184 - 196).

    [12] Primary decision [107], exhibit 1.29 (Green AB 197 - 198).

11. In February and May 2004, the facility limits for Loans A and B were increased to $356,840.58 and $275,000 respectively, on Mr Collopy and Ms Lavater's application.[13]  By 18 October 2004, an increase in the limit for Loan C to $140,000 was approved.[14]  On 19 October 2004, Ms Lavater signed a document consenting to an increase in her liability as guarantor for Loan C from $100,000 to $140,000.[15] 

    [13] Primary decision [85] - [86], [98], exhibit 1.33 (Green AB 209 - 210) and exhibit 1.37 (Green AB 223 - 224).

    [14] Primary decision [110] - [111].

    [15] Primary decision [113] - [114].

12. Mr Collopy died in Ghana on 11 April 2007.  He was working as an overseas resident for an international mining company at that time.  He died without leaving a will.  Ms Lavater received a grant of letters of administration of Mr Collopy's estate approximately two months after her late husband's death.[16]

    [16] Primary decision [2] - [3].

13. In the 14 month period after Mr Collopy's death, Ms Lavater came to appreciate her financial exposure position.  In 2008, she caused the Eric Street Property (which passed to her under survivorship principles) to be sold.  The Bank discharged its mortgage over the Eric Street Property to facilitate the sale.  The net proceeds from the sale were used to discharge the indebtedness on Loan A and reduce the indebtedness on Loan B.[17] 

    [17] Primary decision [52] - [53].

14. As at 30 June 2008, the exposure of Mr Collopy's estate and Ms Lavater upon Loans A, B and C was $317,671.78, comprised of:[18]

    (a)$0 on Loan A;

    (b)$190,392.78 on Loan B; and

    (c)$127,279 on Loan C.

    At 30 June 2008, those three loan advances were secured by the Cale Street Mortgage, still held over the Cale Street Property where Ms Lavater resided with her three children.[19]

    [18] Primary decision [54].

    [19] Primary decision [55].

15. Thereafter, drawings at the behest of Ms Lavater against Loan A caused it to return to debit and exceed the limit of the facility on 7 April 2009.[20]  The account statement for Loan A shows disbursals of $100,000 to Loan B in July 2008 and disbursals of $250,098.85 on 12 September 2008 and $40,000 on 22 September 2008.[21]

    [20] Primary decision [64]; exhibit 1.81 (extract at Green AB 318 - 327).

    [21] Exhibit 1.81 (Green AB 321).

16. The disbursal of the $100,000 from Loan A to Loan B reduced the balance of the latter to $90,392.78 at 7 July 2008.[22]  The account statement for Loan B shows the following disbursals from that loan: $30,000 on each of 1 and 15 August 2008, $60,000 on 28 October 2008 and $35,000 on 27 January 2009.  The last of these disbursals increased the balance of Loan B to $253,862.52.[23]  These events were attributable to decisions Ms Lavater made.[24]

    [22] Primary decision [65] - [68]; exhibit 1.79 (extract at Green AB 287 - 310).

    [23] Green AB 299 - 301.

    [24] Primary decision [69].

17. The balance for Loan C increased due to interest and fees, without any significant credits since June 2007, resulting in the balance of that loan account being $235,595.80 as at 9 January 2017.[25] 

    [25] Primary decision [70] - [73].

18. The absence of statements from the inception of the accounts was attributable to the Bank's routine data archiving and purging policy in respect of records.[26]

    [26] Primary decision [63], [74].

19. Funds under Loans A and B were advanced at the behest of Mr Collopy and Ms Lavater, and used for their benefit, in 2002 - 2008 as recorded on screenshots produced by the Bank.[27]  Funds were advanced to Mr Collopy under Loan C and used for his Perth household and other domestic expenditure, especially at times when he returned to Western Australia in the brief periods he was not working overseas in Africa.[28]

    [27] Primary decision [82] - [85], [93] - [97], exhibits 1.78 (Green AB 285 - 286), exhibit 1.80 (Green AB 311 - 317).

    [28] Primary decision [112], [117].

20. Subsequent to 30 June 2008, Ms Lavater made substantial re‑drawings against Loans A and B.  There has been no substantive reduction in Loan C since Mr Collopy's death in April 2007.[29]

    [29] Primary decision [120] - [121].

21. The trial judge concluded that the claimed indebtedness of Mr Collopy's estate and Ms Lavater to the Bank was established by a prima facie evidence certificate which indicated the total amount owing to the Bank as at 19 February 2018 (the first day of trial).[30]  The trial judge gave the Bank leave to provide an updated certificate as at the date of judgment delivery.[31]  The judge found that the amount owing had not been repaid.[32]

    [30] Primary decision [33], [122].

    [31] Primary decision [58], [122].

    [32] Primary decision [118].

22. The trial judge also concluded that the provisions of the Cale Street Mortgage provided for the Bank's right to possession of the Cale Street Property.[33]

    [33] Primary decision [123] - [124].

23. The judgment requires Ms Lavater to give possession of the Cale Street Property to the Bank within 28 days of judgment, and to pay the Bank $1,346,973.91 plus post judgment interest.[34]

    [34] Blue AB 1 - 2.

Pleadings and particulars as to disbursement of loan funds

1. The statement of claim pleaded that the Bank advanced money to Mr Collopy and Ms Lavater pursuant to the terms of the loan agreements for Loans A and B.[35]  The statement of claim also pleaded that the Bank advanced money to Mr Collopy pursuant to the terms of the loan agreement for Loan C.[36]  Ms Lavater denied that the Bank advanced money under the loan agreements to her or Mr Collopy, and denied receiving any money at all.[37]

   [35] Statement of Claim, pars 7(c), 10(c).

   [36] Statement of Claim, par 13(b).

   [37] Further Amended Defence and Counterclaim, pars 7(d), 10, 13(a).

2. On 3 May 2016, Ms Lavater requested particulars of the amounts advanced by the Bank, including the date of each advance, the amount of the advance, the name of the person to whom the advance was paid, the means by which the advance was paid and the details of any account into which the advance was transferred.  On 25 May 2016, the Bank responded, indicating that it was unable to provide the requested particulars prior to 8 October 2008 (in respect of Loan A), 8 November 2008 (in respect of Loan B) and 6 December 2008 (in respect of Loan C).  The response indicated that the Bank had advanced no further sums since those dates.

Grounds of appeal

1. Ms Lavater now appeals against the judgment on two grounds.

2. Ground 1 contends that the Bank was bound by its pleadings, meaning that the verdict and judgment were required to be entered for Ms Lavater. Ms Lavater contends that the Bank's response to Ms Lavater's request for particulars, referred to at [33] above, formed a component part of the Bank's pleading, because the rules of pleading required the advances to be particularised. Ms Lavater contends that, as the Bank had not been granted leave to depart from its pleadings (and the formal admissions it had made concerning the advances) judgment lay only for her on the causes of action pleaded.

3. Ground 2 contends that:

   Further and alternatively, the trial miscarried on the facts, in that the trial judge (on the evidence):

   (a) acted upon a wrong principle concerning the evidence that the [Bank] was entitled to call in establishing the advances;

   (b) was guided by irrelevant factors and consideration(s), in terms of the manner in which the trial judge found that the [Bank] had established its case;

   (c) failed to consider the effect of admissions by the Bank and the effect that those admissions had upon other materials put forward by the Bank, and by which it purported to establish its case.

4. Particulars to the ground contend that it was not open for the trial judge to accept the computer screenshots produced by the Bank as evidence establishing that the advances were made where:

   (a) no application for leave had been made to withdraw the admissions within the Bank's response to the particulars, nor in the Bank's principal affidavit concerning discovery and supplementary discovery;

   (b) no application for leave had been made to amend the statement of claim, to formally state in the pleading that the advances had been made in accordance with the screen shots;

   (c) the underlying business records and transactions that supported the screen shots (said by the [Bank] to prove the advances) were never put into evidence by it, at all;

   (d) the screen shots were a document that had been prepared for the purposes that they be used in the proceedings, and were otherwise not the business records of the Bank;

   (e) it was for the [Bank] to have otherwise specifically proven the advances, where the evidence adduced by the [Bank] of the screen shots was not determinative of a finding that the advances had in fact been made.

Appellant's submissions

1. It appears from Ms Lavater's written submissions that she seeks to raise three points by these grounds, all of which relate to the finding that money was advanced under the loans.  Ms Lavater confirmed this to be the case at the hearing of the appeal.[38]

Pleading and response to particulars

[38] Appeal ts 2 - 3.

1. First, Ms Lavater contends that the effect of the Bank's response to the request for particulars was to say that 'the Bank was devoid of a capacity to properly prosecute its case on the particularised pleading'.  She contends that the Bank as the lender carried the onus to prove that the relevant advances were made.[39]  Ms Lavater contends that the dates and amounts of the advances had to be specifically pleaded.[40]  She says that the responses to particulars deprived the statement of claim of the essential elements of the cause of action - the proper identification of the pleaded advances (together with an acknowledgement of the Bank's incapacity to have done so).[41]

   [39] Appellant's Submissions, pars 9, 19, 75.

   [40] Appellant's Submissions, par 18.

   [41] Appellant's Submissions, par 26.

2. Ms Lavater submits that the Bank's maintenance of its claims in circumstances in which it was unable to provide the particulars of the pleaded advances was an abuse of process.  She says that the abuse was that the claims (unless they were proper claims supported with the required specificity in the pleadings and in the particulars as required under the Rules) were incapable of being determined in the Bank's favour.[42]

   [42] Appellant's Submissions, pars 27 - 28.

3. Ms Lavater also seeks to characterise the Bank's response to the request for particulars as an admission.  She says that the Bank never sought leave to withdraw that admission, and any request to do so would have properly been refused.[43]  Ms Lavater contends that, having answered her request for particulars by indicating that it could not prove the amounts or dates of the advances, the Bank should not have been permitted to lead evidence to prove the amounts which it said could not be particularised.[44]

   [43] Appellant's Submissions, pars 36 - 40.

   [44] Appeal ts 13.

4. Ms Lavater contends that the trial judge erred by permitting the Bank to depart from its pleadings,[45] and his Honour should not have made findings that traversed outside the particulars.[46]

Admissibility of evidence of screenshots

[45] Appellant's Submissions, par 67(i).

[46] Appellant's Submissions, par 84.

1. Secondly, Ms Lavater appears to challenge the trial judge's decision to admit the screenshots showing disbursements for Loans A and B as evidence in the trial.  Although the grounds do not expressly challenge the admissibility of this evidence, Ms Lavater's written submissions are to the effect that the screenshots should not have been admitted.[47]

   [47] Appellant's Submissions, par 80.

2. At trial, Ms Lavater's counsel objected to the admission of the screenshots showing disbursements for Loans A and B, essentially on the basis that they were not business records but documents which had been prepared for the purposes of the litigation.[48] The trial judge ruled that the screenshots were admissible as business records under s 79C(2a) of the Evidence Act 1906 (WA),[49] which relevantly provides:

   … in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if -

   (a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and

   (b)the court is satisfied that the business record is a genuine business record.

   [48] Trial ts 64 - 67; 210 - 212.

   [49] Trial ts 208, 213 - 214.

1. Section 79B of the Evidence Act contains the following definitions:

   business record means a book of account or other document prepared or used in the ordinary course of a business for the purpose of recording any matter relating to the business;

   derived means derived, by the use of a computer or otherwise, by calculation, comparison, selection, sorting, consolidation or by accounting, statistical or logical procedures;

2. Ms Lavater submits that the evidence of the underlying transactions that went to make the screenshots was required to show the whole context in which the electronic evidence was gathered, the way in which it was generated, how it was stored, how it was retrieved and how it was produced.  She notes that '[t]he person that is said to have been the responsible officer of the Bank that in fact did the work in compiling the screen shots was never called by the Bank as a witness'.[50]

   [50] Appellant's Submissions, par 79.

3. Ms Lavater submits that, '[b]efore a business record or any other document is admitted into evidence, there must be a proper and necessary basis that the document is what it purports to be.'  She accepts that the authenticity of a business record may be proven by means which include evidence of a person who participates in the conduct of the business and compiled the document or found it among the business' records, or can recognise it as one of the records of the business.  However, she contends that the screenshots were not such a document in that they were prepared much later by an officer of the Bank and without the underlying data.[51]

Conclusion that advances were made was not open on the evidence

[51] Appellant's Submissions, par 80.

1. Thirdly, apart from the pleadings issues, Ms Lavater contends that it was not open to the trial judge to find that advances had been made on the basis of the screenshots, when the underlying records and transactions were not in evidence, the screenshots were prepared for the purposes of their use in the proceedings and it was for the Bank to prove the advances.[52]  She submitted, in effect, that the lack of contemporaneous records, and inconsistencies in the available records, meant that the trial judge could not have been satisfied that advances were made on the loans.

   [52] Appellant's Submissions, pars 67(ii), 86.

Applications in an appeal

1. Ms Lavater made a number of applications in an appeal, three of which have been referred to the hearing of the appeal. In each case, Ms Lavater applies to adduce additional evidence in the appeal. The principles on which this court will receive additional evidence in a civil appeal are well established,[53] and need not be restated here.

   [53] See Saunders v Public Trustee [2015] WASCA 203; (2015) 13 ASTLR 226 [83] - [90].

2. By application dated 30 July 2018, Ms Lavater applies to adduce additional evidence in the appeal.  Filed with that application was Ms Lavater's affidavit of 30 July 2018.  The affidavit largely comprises, in substance, submissions made by reference to the evidence adduced at trial.  She says that one of the screenshots shows a disbursal from Loan A to Loan C on 27 June 2003, which was 6 months prior to the alleged agreement for Loan C.  She also refers to an entry in a comment history for Loan C which shows a disbursal of $100,000 on 29 January 2004.[54]  The only evidence in this affidavit which was not adduced at trial appears to be a letter dated 2 May 2018 from the Bank's solicitors offering an explanation of the above matters.[55] 

   [54] Affidavit par 12.

   [55] Annexure E, Yellow AB 28.

3. We would have regard to the contents of this affidavit as submissions, so far as it refers to the evidence at trial.  We would not admit the affidavit as evidence.  The only additional document referred to - the letter of 2 May 2018 - would appear to be a self-serving statement made by the solicitors for the Bank which is not evidence of the truth of its contents.

4. By application dated 14 September 2018, Ms Lavater, in effect, seeks to adduce her affidavit sworn in the primary proceedings on 7 February 2017 as additional evidence in the appeal.  Correspondence annexed to the supporting affidavit indicates that she seeks to do so in response to discovery affidavits from the primary proceedings being included in the appeal books at the Bank's request.  Ms Lavater's affidavit was not adduced in evidence at trial and it largely deals with matters about which Ms Lavater gave evidence.  We see no basis on which it should be admitted on appeal.

5. By application dated 17 September 2018, Ms Lavater seeks to have correspondence from 2012 between her and the Bank, in which she requests information about the loans, admitted as additional evidence in the appeal.  This correspondence, which existed at the time of trial, does not appear to be relevant to any matter in issue in this appeal.

6. For the above reasons, we would dismiss Ms Lavater's applications in an appeal.

Consideration of grounds

Pleading and response to particulars

1. We do not accept Ms Lavater's submission that it was necessary for the Bank to specifically plead, and be in a position to prove, the precise dates on which advances were made and the amounts advanced on each date.  The Bank bore the onus of proving that advances were made, and the amount due on the loans which it sought to recover.  However, there were provisions of the financial instruments which were available to facilitate the Bank's proof of those matters.

2. The Cale Street Mortgage,[56] the agreements for Loan A and Loan B,[57] and the Guarantee for Loan C,[58] all contain provisions for the Bank to give a certificate about the amount payable which is sufficient evidence about the matter unless (at least in the case of the Cale Street Mortgage and the Guarantee) it is proved to be incorrect.  A certificate, stated to be issued under the provisions of the Cale Street Mortgage, was signed and dated 19 February 2018 and identified the amounts payable under Loans A, B and C as at that date.[59]  An updated certificate was provided at the date of judgment delivery. 

   [56] Clause 25.1 of the Consumer Mortgage Memorandum of Common Provisions (G308577) (Green AB 60) incorporated by cl 2.1 of the Cale Street Mortgage (Green AB 82).

   [57] Clause 21 of the loan agreements (Green AB 147, 165).

   [58] Clause 18.1 of the Consumer Guarantee and Indemnity (Green AB 191).

   [59] Exhibit 3 (Green AB 348 - 349).

3. The High Court held that a clause of this kind in a guarantee was valid in Dobbs v National Bank of Australasia Ltd.[60]  In Dobbs, the clause provided for the certificate of a manager of the Bank to be 'conclusive evidence of the indebtedness'.  The High Court held that the clause meant what it said, ie the certificate of the bank officer conclusively established the amount and existence of the customer's indebtedness.

   [60] Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643; see also St George Bank Ltd v Emery [2004] WASC 35 [30] - [38].

4. In the present case, the certificates were 'sufficient evidence' of matters including the 'amount payable in connection with' the Cale Street Mortgage and the guarantee 'unless it is proved to be incorrect'.  The effect of these clauses was to place the onus upon Ms Lavater to demonstrate by acceptable evidence that the certificates were incorrect.[61]

   [61] Commonwealth Bank of Australia v Oberdan [2000] SASC 428 [14]; George 218 Pty Ltd v Bank of Queensland [2015] WASC 434; (2015) 303 FLR 231 [247].

5. It was open to the Bank to rely on these certification provisions in proving the amounts owing under each loan.  If it was in a position to issue a certificate based on its current records of the amount owing on each loan, there was no imperative for the Bank to be in a position to establish the date and amount of each advance.  Contrary to Ms Lavater's submissions, proceeding in that manner did not involve any abuse of the process of the court.

6. Nor do we accept Ms Lavater's submissions that the response to her request for particulars constituted:

   (1)a pleading from which the Bank required leave to depart; or

   (2)an admission that the Bank required leave to withdraw,

   before it could prove the dates and amounts of particular advances.  The Bank had pleaded that it had advanced money pursuant to the terms of each loan agreement, and never withdrew that pleading.  The effect of its response to the request for particulars was that the Bank was unable to provide the requested particulars.  That response did not preclude the Bank from relying on its pleading as to the advances, or adducing evidence as to particular advances in a manner which did not unfairly prejudice Ms Lavater's defence to the Bank's claim.  The pleading of a fact in a statement of claim does not constitute an admission by the plaintiff.[62]  The same is true of a response to a request for further and better particulars of a statement of claim.

   [62] Sangora Holdings Pty Ltd v Dunstan (1996) 16 WAR 552, 563.

7. The Bank's response to the request for particulars was given on 25 May 2016.  Subsequently, in about October 2017, a Bank employee, Mr Kent, was asked to 'interrogate' the Bank's information technology systems for information about advances.  He arranged for screenshots of disbursal history screens and disbursal details history screens to be recovered from the Bank's systems at about that time.[63]  Account ledger sheets had already been discovered by the Bank on or about 7 June 2017.[64]  The screenshots of disbursal history screens and disbursal details history screens were discovered on or about 6 November 2017.[65]  On 15 November 2017, Mr Kent signed a witness statement setting out the retrieval of that information and identifying the relevant documents.  The witness statement was filed on 15 November 2017, and it may be inferred that it was served on Ms Lavater's solicitors on or about that date.  The Bank's written opening submissions filed on 5 February 2018 identified the manner in which the advances would be proven.[66]  The trial did not begin until 19 February 2018.

   [63] Trial ts 124 - 125, 129, 134 - 135, 142.

   [64] Affidavit of Kishin Bhavnani verifying supplementary list of documents sworn 7 June 2017, discovery item 144 (Blue AB 84).

   [65] Affidavit of Denise Ann Morrison verifying supplementary list of documents sworn 6 November 2017, discovery items 164 and 165 (Blue AB 89).

   [66] Plaintiff's Opening Submissions dated 5 February 2018, pars 2, 5.

8. The above chronology indicates that the Bank had informed Ms Lavater of the historical transactions it intended to prove, and provided the means by which it would seek to prove those transactions, about 3 months prior to trial.  There was no unfairness to Ms Lavater in the Bank being allowed to adduce this evidence at trial without amending its response to the request for particulars.

9. It is also significant that Ms Lavater's trial counsel did not object to evidence of historical advances being adduced by reason of the Bank's response to the request for particulars.  This reinforces our assessment that the course adopted did not result in a trial which was unfair to Ms Lavater.

Admissibility of evidence of screenshots

1. Although not incorporated into the ground, we will deal with Ms Lavater's submission as to the admissibility of the screenshots of disbursal history screens and disbursal details history screens.  In our view, the trial judge was correct to admit that evidence.

2. Mr Kent's evidence was that the Bank uses a 'core banking system known as HOST to record, amongst other things, transaction and disbursal histories for customer accounts'.[67]  His evidence was that the information contained in HOST forms part of the records prepared or used by the Bank in the ordinary course of business for the purpose of recording information relating to customers and their accounts.[68]  He had observed another Bank employee obtain some of the information from HOST.[69]  HOST was the Bank's electronic record of the transaction, and paper records were not kept.[70]  The electronic records in the database were created at the time the loans were disbursed.[71] 

   [67] Statement of Geoffrey Bernard Kent dated 15 November 2017, par 7.

   [68] Statement of Geoffrey Bernard Kent dated 15 November 2017, pars 4, 8.

   [69] Trial ts 128.

   [70] Trial ts 129 - 132.

   [71] Trial ts 147.

3. Ms Lavater's trial counsel did not put to Mr Kent that the screenshots were not genuine reproductions of the data retained by the Bank in its electronic records.

4. Ms Lavater's trial counsel objected to the admission of the screenshots on the basis that they were not admissible as business records because they had been prepared for the purposes of the litigation.[72]

   [72] Trial ts 65, 210 - 211.

5. The screenshots themselves were not a 'business record' for the purposes of s 79C of the Evidence Act. They were, as Ms Lavater's trial counsel observed, created in about October 2017 for the purposes of the trial. However, the information shown in the screenshots was derived from the Bank's electronic business records in the manner described by Mr Kent. That is sufficient for the purposes of s 79C(2a)(a) of the Evidence Act, which enables a statement in a document that has been derived from a business record to be admitted.  Mr Kent's unchallenged evidence was that the electronic record from which the screenshots were derived was a genuine business record.  The conditions for admissibility of the screenshots as business records were satisfied on that basis.

6. There was, in our view, no basis for requiring the production of the electronic data from which the screenshots were derived as a requirement of their admissibility. Nothing in s 79C so provides and, on its proper construction, the same cannot be implied. There is no warrant for reading down the generality of the language of this remedial provision, which is to be construed liberally and not pedantically.[73] Nor did the fact that the information was extracted from the HOST system by another employee under Mr Kent's direct supervision prevent the conclusion that the screenshots were derived from a genuine business record. To hold that it did would defeat or undermine the evident object of s 79C(2a). Under that provision, there is no requirement that the statement in the document be made by a qualified person, in other words by a person with personal knowledge, or that the statement be derived therefrom.[74] Nor is there a requirement, under s 79C, that all those involved in the derivation of the statement from a business record be called as witnesses.

   [73] Donohue v The Director of Public Prosecutions (WA) [2011] WASCA 239 [126].

   [74] Beamish v The State of Western Australia [2005] WASCA 62 [157]; Donohue [122].

7. Ms Lavater referred to National Australia Bank v Rusu.[75] In that case, Bryson J held that it was necessary to prove the authenticity of a bank statement before it could be adduced as a business record under s 69 of the Evidence Act 1995 (NSW). His Honour rejected the tender of documents not produced through any witness, the authenticity of which had not been established under the rules of court related to discovery of documents. That case is distinguishable from the present on three bases. First, s 79C(5)(a) of the Evidence Act of this State allows the court, for the purposes of deciding whether or not a statement is admissible in evidence, to draw any reasonable inference from the form or contents of the document in which the statement is contained.[76]  Secondly, the screenshots in this case were tendered through the evidence of a witness, Mr Kent, who recognised them as business records of the Bank and who supervised and observed their extraction from the database.  Thirdly, Ms Lavater was deemed to have admitted the authenticity of the screenshots under O 30 r 4 of the Rules of the Supreme Court 1971 (WA) when they were discovered and Ms Lavater did not serve a notice disputing the authenticity of the screenshots.

   [75] National Australia Bank v Rusu [1999] NSWSC 539; (1999) 47 NSWLR 309.

   [76] Note that the reprints and compilations of the Evidence Act refer to 'form of contents'. Section 79C(5)(a), as originally inserted by the Evidence Act Amendment Act 1987 (WA) used the text 'form or contents'.  Cf Agricultural Land Management Ltd v Jackson [2013] WASC 464 [44].

8. We note that Bryson J's view that proof of the authenticity of a document is a precondition to the admissibility of documentary evidence has been disapproved or doubted in subsequent cases.[77]  Given the distinguishing features noted above, it is unnecessary for us to enter into that debate.

   [77] See the discussion in ASIC v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181 [93] - [97]. See also ASIC v Rich [2005] NSWSC 417; (2005) 216 ALR 320 [116] - [121], referred to by Ms Lavater in her written submissions.

9. For the above reasons, the trial judge correctly admitted the evidence of the screenshots of disbursal history screens and disbursal details history screens under s 79C(2a) of the Evidence Act.

Conclusion that advances were made

1. For the following reasons, we reject Ms Lavater's contention that it was not open to the trial judge to find that advances had been made on each of the loan accounts.

2. That conclusion could be reached without resort to the screenshots referred to above.  In her evidence-in-chief, Ms Lavater acknowledged drawing funds out of Loan A and Loan B after October 2008.[78]  The account statements for those loans indicate that funds were drawn after that date.[79]  That evidence of Ms Lavater was sufficient to establish that the Bank advanced money under the terms of the agreements for those loans.  Further, the available bank statements in relation to Loan C (a line of credit facility) showed drawings of various amounts, apparently used for day-to-day expenses, between November 2005 and August 2006.[80] At least once the fact of drawings on each loan account was established by this evidence, the certificates referred to at [56] above operated as prima facie evidence of the amounts owing on each account. In these circumstances, and in the absence of any evidence showing the certificates to be incorrect, it was unnecessary for the Bank to prove the initial advance of funds pursuant to the terms of those loan agreements.

   [78] Exhibit 6: Witness Statement of Sally Lavater dated 18 February 2018, par 106 (adopted as her evidence‑in-chief at trial ts 226).

   [79] Exhibits 1.79 and 1.81.

   [80] Exhibit 1.82 (extract at Green AB 328 - 329).

3. In any event, the evidence at trial supported the inference that funds were advanced pursuant to the agreements for Loan A and Loan B in 2002 - 2005.

4. The loan agreement for Loan A, signed on 9 September 2002, indicated that the purpose of the loan was to 'assist with construction of owner occupied dwelling, finance mortgage protection and fees'.  The disbursal instructions anticipated the following drawings from the loan account:[81]

   [81] Exhibit 1.14 (Green AB 137).

To:	Builder - Webb & Brown‑Neaves - via Progress Payments	$Not Ascertainable
To:	At the Direction of the Borrower  ………………………….	$Not Ascertainable
To:	St Andrew's Insurance - Mortgage Protection  ……..……..	$2,445.90
To:	BankWest - Security Assessment Fee  …………………….	$100.00
To:	Office of State Revenue - Mortgage Stamp Duty  …………	$696.50
To:	Land Titles Office - Title Search Fee  ……………………..	$22.00
$312,445.90

1. The 2002 building contract with Webb & Brown-Neaves provided for Mr Collopy and Ms Lavater to pay a deposit of $7,000 and then make the following payments to the builder:[82]

   Balance of deposit to be paid before pre‑start meeting         $11,150.00

   Plate height - first floor  $65,625.00

   First floor slab  $27,923.00

   Plate height - second floor  $55,847.00

   Lock up (windows and external doors)  $55,847.00

   Practical Completion  $55,847.00

   TOTAL (including deposit)  $279,239.00

   [82] Exhibit 1.9 (Green AB 99).

2. The disbursal history screen for the account for Loan A shows the following advances made on that account:[83]

   [83] Exhibit 1.80 (Green AB 311).

Disbursal Date	Disbursal          Number	Effective Date	Principal          Amount	Fees          Amount
23/09/2002	01	23/09/2002	6,528.80	3,264.40
12/11/2002	02	12/11/2002	11,150.00	0.00
05/12/2002	03	05/12/2002	5,900.00	0.00
17/02/2003	04	17/02/2003	93,598.00	0.00
28/04/2003	05	28/04/2003	55,847.00	0.00
27/06/2003	06	27/06/2003	30,992.50	0.00
30/10/2003	07	30/10/2003	55,897.00	0.00
16/04/2004	08	16/04/2004	55,847.00	0.00
25/05/2004	09	25/05/2004	44,679.31	3,921.93
07/07/2008	10	07/07/2008	100,000.00	0.00
12/09/2008	11	12/09/2008	250,098.85	0.00

1. The amount of $11,150 recorded as being advanced on Loan A on 12 November 2002 is the same as the amount payable as the 'balance of deposit' under the building contract.  An amount of $93,548[84] recorded as being advanced on Loan A on 17 February 2003 is the sum total of the amounts payable under the building contract for 'plate height - first floor' and 'first floor slab'.  Three amounts of $55,847 recorded as being advanced on Loan A on 28 April 2003, 30 October 2003[85] and 16 April 2004 are the same as the last three progress payments due under the building contract.

   [84] The disbursal details history screen for the advance of $93,598 on 17 February 2003 (referred to at [78] above) shows a payment of $93,548 to one account, and a separate payment of $50 for a 'progress inspection fee' to another account, exhibit 1.80 (Green AB 313).

   [85] The disbursal details history screen for the advance of $55,897 on 30 October 2003 shows a payment of $55,847 to one account, and a separate payment of $50 to another account, exhibit 1.80 (Green AB 314).

2. The grounds of appeal do not challenge the trial judge's finding that Webb & Brown-Neaves built a residence at the Cale Street Property between 2003 and 2005.[86]  Ms Lavater's evidence at trial was that the residence was constructed at about that time.[87]

   [86] Primary decision [55].

   [87] Trial ts 236 - 238.

3. The above evidence shows that:

   (1)A residence was built at Cale Street Property by Webb & Brown‑Neaves from 2003.

   (2)A building contract between Mr Collopy, Ms Lavater and Webb & Brown-Neaves was signed for the construction of that residence.

   (3)The loan agreement for Loan A identified a purpose of the loan as being to assist with the construction of the residence.

   (4)Amounts equal to the progress payments provided for in the building contract were recorded as being paid out of the loan account for Loan A.

   These facts give rise to a compelling inference that, in 2003 - 2005, funds were advanced pursuant to the loan agreement for Loan A to assist with the construction of the new residence at the Cale Street property.

4. The loan agreement for Loan B, also signed on 9 September 2002, indicated that the purpose of the loan was to 'assist with refinance of existing BankWest debt and finance mortgage protection'.  The loan amount was $179,950.69.  The disbursal history screenshot for Loan B shows that amount to have been disbursed on 20 September 2002.[88]  The disbursal details history screenshot for that disbursement shows that $178,284.29 was used to close an account ending in '661-5', and $257.71 was 'surplus'.[89]  This supports the inference that the loan amount was advanced to discharge existing indebtedness to the Bank.

   [88] Exhibit 1.78 (Green AB 285).

   [89] Exhibit 1.78 (Green AB 285).

5. In relation to the recorded payout of the account ending in '661-5', Ms Lavater points to a letter written by the solicitors for the Bank on 15 January 2016.[90]  In part, that letter indicated that the Bank had 'searched its systems and records which are kept for 7 years' and had not located any records for account numbers which included the account ending in '661-5'.  The statement in the solicitor's letter is not inconsistent with the subsequently located screenshot showing a payout of that account on 20 September 2002.  The recorded payout date was more than 7 years prior 15 January 2016.

   [90] Exhibit 10 (Green AB 358).

6. Ms Lavater also refers to the fact that the single security packet held by the Bank, which was said by the Bank's employee Ms Thornton to contain all loan contracts Mr Collopy and Ms Lavater entered into, did not contain any documents for the loan account ending in '661-5'.[91]  While the unexplained absence of documentation in the security packet counts against the existence of a paid out loan account, the overall effect of the evidence supports the inference that an advance was made pursuant to the agreement for Loan B in September 2002.

Appellant's other contentions

[91] Appeal ts 15 - 17, referring to exhibit 5A (Statement of Kylie Anne Thornton dated 8 November 2017), pars 6 - 10 (Green AB 10 - 14) and trial ts 179.

1. Ms Lavater raised a number of other contentions, which do not detract from the above conclusions.

2. Ms Lavater emphasised the very difficult situation in which she found herself when her husband died suddenly in Ghana.  Up until that time she had left the family finances to Mr Collopy and had no appreciation of, or documentation about, their financial position.  She had difficulty in obtaining any information about the loans and mortgages after her husband's death.[92]

   [92] Appeal ts 4 - 8.

3. It may be accepted that Ms Lavater lacked an appreciation of the financial arrangements which she and Mr Collopy had made before his death.  However, to accept that that was so does not deny the existence of Ms Lavater's legal liability to the Bank.  The grounds of appeal do not challenge the trial judge's findings that Ms Lavater signed the relevant financial documents.  Ms Lavater's execution of those documents created a legal liability which was not destroyed by her lack of appreciation of the family's financial position at the date of her husband's death.  Any difficulty in obtaining information from the Bank did not destroy her existing liability to the Bank.

4. Ms Lavater also referred to findings the trial judge made as to disbursements into and out of the account for Loan A following the sale of the Eric Street Property in 2008.[93]  The statement for the loan account shows an amount of $250,098.85 being both credited and debited to the account on 12 September 2008.  It also shows an amount of $349,972.52 being paid into the account for Loan A on 30 June 2008 to bring it to a zero balance, and $100,000 then being disbursed from the account for Loan A to the account for Loan B on 7 July 2008.[94] Ms Lavater submits, in effect, that the trial judge erred in finding that these drawings occurred at her instruction (as opposed to at the instigation of the Bank). However, even assuming that his Honour erred in that finding, that would not detract from his other findings that amounts were advanced in 2002 - 2005, or Ms Lavater's acceptance that she subsequently drew down other amounts from the accounts for Loans A and B. Nor do the impugned findings detract from the critical conclusions reached at [73] - [84] above.

   [93] Primary decision [89]; appeal ts 19 - 20.

   [94] Exhibit 1.81 (extract at Green AB 320, 321).  Although the date is obscured by a hole punch in the Green AB, an unobscured entry is in the original exhibit.

5. Ms Lavater refers to what she says is an anomaly in the screenshot of the disbursal details history for the advance of $30,992.50 for Loan A on 27 June 2003.[95]  The screenshot shows the funds being disbursed to the account ending in '161-0', which is the account for Loan C.  However, she points out that the home loan contract for Loan C was signed about 6 months later on 18 December 2003.[96]  Again, this apparent anomaly does not detract from the compelling inference that other funds were advanced from the account for Loan A to assist with the construction of the residence at the Cale Street Property.

   [95] Exhibit 1.80 (Green AB 314).

   [96] Appeal ts 20.

6. Ms Lavater notes that, in cross-examination, Mr Kent accepted that the ledger sheets 'would have been' obtained at around the same time as the screenshots.[97]  The printout of the screenshots indicates that they were obtained on 6 and 31 October 2017.[98]  Ms Lavater submits that the ledger sheets must have been obtained earlier than October 2017, as they were discovered on 7 June 2017.[99]  It may well be that Mr Kent was mistaken in his answer, which was not based on any particular document, as to the date on which the ledger sheets were obtained.  We note that the end of the report of the ledger sheets suggests it may have been printed out on 8 November 2006.[100] But that potential mistake by Mr Kent does not detract from the critical conclusions reached at [73] - [84] above.

   [97] Appeal ts 24 - 26; trial ts 134.

   [98] Exhibit 1.78 (Green AB 285 - 286) and 1.80 (Green AB 311 - 317), trial ts 134.

   [99] Appeal ts 26 - 27.  The discovery is at Blue AB 80, 84 (item 144).

   [100] Exhibit 1.77 (Green AB 284).

7. Ms Lavater also notes (and the Bank accepts) that, at one point, the trial judge incorrectly identified two documents concerning Loan B as relating to Loan A.[101] However, this seems to be a referencing error which did not affect the substance of his Honour's reasoning, or affect the conclusions reached at [73] - [84] above. The documents referred to deal with an increase in the facility limit for Loan B, and the trial judge also referred to the equivalent documents for Loan A.

   [101] Primary decision [85], in the reference to exhibits 1.31 and 1.32.  See appeal ts 35 - 36, 43.

8. Ms Lavater is critical of the trial judge's statements which, in effect, describe her conduct between 2008 and 2018, in allowing the level of indebtedness to increase as it did, as 'most foolish behaviour'.[102]  It does not appear to us to have been necessary for the trial judge to have made these remarks, as his Honour was concerned with whether the liability existed and not whether it was incurred wisely or otherwise.  Nothing in these reasons should be taken to express any view on the subject matter of those comments made by the trial judge.  However, it does not appear that those comments affected his Honour's conclusion as to the existence and extent of Ms Lavater's liability.

   [102] Appeal ts 20, 38, in relation to primary decision [56].

9. Ms Lavater's submissions also raised a number of other matters, such as issues about signatures on documents, which do not relate to the grounds of appeal.[103]  The grounds of appeal are solely concerned with challenging the finding that advances were made pursuant to the loan agreements.  It is therefore unnecessary to address those other matters.

   [103] See, for example, appeal ts 28 - 32, 34 - 35, 37 - 38, 41 - 42.

Orders

1. For the above reasons, we would make the following orders in the appeal:

   (1)The appellant's applications in an appeal dated 30 July 2018, 14 September 2018 and 17 September 2018 are dismissed.

   (2)The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

ZMM
Research Associate/Orderly to the Honourable Justice Mitchell

5 JULY 2019