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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

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

CORAM: KENNETH MARTIN J

HEARD: 19-22 FEBRUARY 2018

DELIVERED : 21 MARCH 2018

FILE NO/S: CIV 1231 of 2016

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
SALLY ANNE COLLOPY ALSO KNOWN AS SALLY ANNE LAVATER AS ADMINISTRATOR OF THE ESTATE OF MARK DAMIAN COLLOPY
Defendant

Catchwords:

Banker and customer - Loans - Deceased estate - Guarantee - Challenged signature to guarantee - Evidence - Business records of Bank - Loans proved and not repaid

Legislation:

Corporations Act 2001 (Cth)
Transfer of Land Act 1893 (WA)

Result:

Judgment for plaintiff

Category: B

Representation:

Counsel:

Plaintiff: Ms C H Thompson
Defendant: Mr T Hall

Solicitors:

Plaintiff: Dentons
Defendant: Hall Partners

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

Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95
George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC 434

KENNETH MARTIN J: This is a debt recovery action by the plaintiff bank ('the Bank') as successor in title to the rights and liabilities of the former West Australian based banking institution known as Bankwest.

Overview

The Bank's recovery action is against the defendant, Ms Sally Anne Lavater, in two capacities. First, she is pursued as the administrator of her late husband's estate. Mr Mark Damian Collopy died whilst employed in Ghana as an overseas resident working for an international mining company. That was on 11 April 2007.
Mr Collopy had died overseas in Africa without leaving a will. Ms Lavater, his widow, subsequently applied for letters of administration in Western Australia. She received a grant to that effect approximately two months after her late husband's death.
The late Mr Collopy's estate is pursued by the Bank essentially for significant loan arrears said to be due to Bankwest in respect of three loans made to Mr Collopy and his wife between September 2002 to 2004.
I will shortly provide some further details of the three loans at issue in the trial. For the moment, however, I will simply for convenience designate the three loans in question as Loans A, B and C.
The other capacity in respect of which Ms Lavater is pursued by the Bank is upon her alleged personal indebtedness as a co-borrower with her late husband on Loans A and B. In respect of another loan (Loan C) she is pursued as the personal guarantor of the Loan C advances made by Bankwest to her late husband as principal borrower under an agreement reached by Bankwest with him on or about 18 December 2003 and then of further advances under Loan C in 2004.
Loans A and B are said to have been entered into jointly by Mr Collopy and Ms Lavater under written loan contracts with Bankwest of 9 September 2002.
The written terms of the three loan agreements at issue all carry features allowing a redraw of funds on the account from time to time - up to the limit of each loan facility. The three loans all carried variable interest rates. Interest payable on the loans could fluctuate over time under variable interest rates as notified to the respective borrowers by the Bank from time to time.
Loans A and B are the subject of loan agreements both contended to have been accepted and signed by Ms Lavater and Mr Collopy with Bankwest on the same date - namely, 9 September 2002. Loan agreement documents tendered in evidence, see exhibit 1.14 and exhibit 1.15, both display that same September date.
The third of the loans at issue, Loan C, is slightly different. It was, as mentioned, in the nature of a credit facility arrangement by Bankwest reached with Mr Collopy as borrower in late 2003 - enabling him to withdraw funds up to a limit of $100,000.
Later in 2004 that limit for Loan C was varied and increased by a further $40,000, to $140,000. Ms Lavater was not a direct party to the Loan C lending arrangements - other than as personal guarantor for her late husband's borrowing obligations, on the Bank's case.
By this action, the Bank pursues Mr Collopy's estate for the total indebtedness in respect of all three loans plus interest. The Bank next pursues Ms Lavater personally as co‑borrower in respect of Loans A and B. Further, it pursues her personally in respect of Loan C as the guarantor of her late husband's obligations on that third loan.
In respect of Loan C, the relevant personal guarantee document (exhibit 1.28 in the trial bundle) that is invoked by the Bank against Ms Lavater, is seen to be undated. However, the surrounding facts providing context for that document indicate a likely execution date of December 2003.
That is the case albeit Ms Lavater's contention at the trial was that she had never signed any guarantee documents in respect of Loan C. Likewise, her trial position as defendant was also that she had not signed the two written loan agreements of 9 September 2002 in respect of Loans A and B but which, on their face, do appear to carry the endorsed signatures of both herself and of her late husband.
As I proceed to explain in these reasons, I ultimately conclude that Ms Lavater did, in fact, sign both loan agreements of 9 September 2002 in respect of Loans A and B. I conclude that Ms Lavater is liable to the Bank both personally and as administrator of her late husband's estate in respect of all unrepaid debit balances due on both those loans.
Likewise, I have concluded that the undated guarantee instrument, exhibit 1.28, was indeed signed by Ms Lavater (as Sally Anne Collopy) in or around December 2003 and that she is liable to the Bank upon her personal guarantee given in respect of Loan C.

Ms Lavater's defences

A handwriting expert witness called at the trial by the Bank provided his expert report (see exhibit 1.68) concerning an examination of Ms Lavater's signatures on all questioned documents.
The handwriting expert assessed the questioned signatures to be consistent with other genuine and undisputed signatures by Ms Lavater (as Sally Anne Collopy). The Bank's handwriting expert was not directly challenged at the trial by counsel for Ms Lavater concerning the expert conclusions as regards the genuineness of Ms Lavater's signatures as they manifested on her questioned loan and guarantee documents. The Bank's opinion evidence at the trial as to her handwriting and signatures was therefore essentially uncontradicted. But, in any event, I would accept the expert's opinions as both persuasive and reliable in respect of all conclusions concerning the genuineness of the signatures of Ms Lavater (as Sally Anne Collopy) on each of these documents.
Ms Lavater's contrary position as asserted by her concerning a questioning of her own (and perhaps her late husband's) signatures on each of the 2002 loan agreements and on the personal guarantee document was not at all convincing. Her own trial evidence was in the nature of reconstructed ex post facto conclusions grounded more upon her stated beliefs (that she no doubt came to hold) but which, under trial scrutiny, lacked an empirical basis.
The expressed basis for Ms Lavater's positions concerning an attempted disengagement by her from documents which she would not accept carried her genuine signatures was unpacked at some length during her trial cross‑examination (see ts 272).
In broad summary, Ms Lavater's unconvincing denial positions might be summarised as being based upon the following factors, namely:
(a)that she believed she would not have signed such Bankwest loan or guarantee documents;
(b)that she did not remember and did not have a recollection of signing any Bankwest documents (albeit that these events by the time of trial in 2018 would have unfolded well over a decade earlier);
(c)that she believed that she generally did not sign documents using the surname of Collopy at these times - preferring, she said, to be known then under her surname of Lavater (a hypothesis I would, in any event, reject on all the trial evidence as not supportable bearing in mind the multiple instances of documents which refer to the defendant as Sally Anne Collopy); and
(d)as regards the undated guarantee document for Loan C (exhibit 1.28) and an accompanying statutory declaration (exhibit 1.30), that the as named pharmacist witness to her signature would not, on her hypothesis, have agreed to have been a witness to any signature to documents (albeit he was such a witness) without first seeing photo identification of the defendant (as Sally Anne Collopy), but such (photo) identification she says she did not ever hold at that time in the Collopy surname and, therefore, she reasons, she could never have been in a position to show to a witnessing chemist.
There was some further ad hoc documentary evidence (see exhibits 7 and 8) which was adduced upon this issue at the trial, including a statutory declaration from the named witnessing chemist. But, essentially, the evidence is, in the end, inconclusive to support Ms Lavater's negative hypothesis as regards her attempted disengagement against all the loans and guarantee documents held by Bankwest.
To be balanced against Ms Lavater's refusals to accept the genuineness of her signatures ostensibly applied in respect of the loan and guarantee documentation of Bankwest adduced at the trial, there stands the essentially uncontradicted expert evidence of the Bankwest handwriting expert at the trial, Mr Ganas.
There is also, on the balance of probabilities, a strong likelihood, in my view, that a banking institution would as a matter of practice insist upon proper execution, witnessing and return of all specified lending documentation which had been designated as the pre-conditional security foundation upon which loans under a lending arrangement were agreed to be advanced.
But beyond all that and favouring the Bank is a considerable body of surrounding documentary evidence adduced at this trial, all of which overwhelmingly points to a position of orthodoxy as regards Ms Lavater's signing, along with her late husband in September 2002 the two loan agreements (for Loans A and B) with Bankwest, and then the subsequent advance and receipt by them as borrowers of the loan funds from Bankwest under those lending agreements. That was followed at the end of 2003 by a credit facility initially in the amount of $100,000 agreed to be advanced by Bankwest to the late Mr Collopy (Loan C). This is all consistent with circumstances in which a first registered mortgage over a residential property in Cale Street, Como, then owned by the late Mr Collopy and Ms Lavater (in the name of Sally Anne Collopy on the instruments of title and registered Transfer of Land Act 1893 (WA) first registered mortgages) and then owned in their joint names came to be upstamped on 23 August 2002 to secure further advances in the amount of $278,600 (see exhibit 1.1).
Part of the security required by the Bank in agreeing to make then Loans A and B in September 2002 and then in agreeing to advance Loan C to Mr Collopy in December 2003 was for all those advances to be secured under the two existing all moneys registered first mortgages already held by Bankwest over the properties owned by Mr Collopy and his wife at:
(a)a strata unit in Eric Street, Como, which was the whole of land comprising Certificate of Title vol 1915 folio 196 (the Eric Street property); and
(b)the residence at Cale Street, Como, more particularly described as lot 333 on plan 4852, being the whole of the land comprising Certificate of Title vol 2014 folio 929 (the Cale Street property).
The Eric Street property had first been acquired by Mr Collopy and Ms Lavater years earlier in about January 1992. It became mortgaged as security to Bankwest in 1994 (see exhibit 1.1).
The Cale Street property came to be acquired by Mr Collopy and his wife jointly in April 1998.
It would appear that Eric Street was acquired outright and without any mortgage by Mr Collopy and Ms Lavater early in 1992. By 1994 they had become customers of Bankwest. In January 1994 a first registered mortgage F428445 was granted by them to Bankwest to secure all advances. That same first registered mortgage (which is exhibit 1.1) was also granted over further properties as then owned by Mr Collopy and his wife - including a property in Kalgoorlie (Park Street) and another property owned by them on Mill Point Road, South Perth.
As mentioned, the Cale Street property was acquired by the Collopys in 1998. It appears that some funds were advanced at that time by Bankwest to aid that acquisition and were secured over the as acquired Cale Street property, over the Eric Street property and as well over the other properties they had owned at that time.
In 2002, Bankwest's first registered mortgage security in respect of Loans A and B and subsequently, for Loan C at the end of 2003, was taken over both the Eric Street and Cale Street, Como properties under the first registered all moneys mortgages as then held by Bankwest, but upstamped to cover the increased indebtedness secured and attributable to those advances.
Therefore, as regards Loan C made to Mr Collopy in 2003 and the personal guarantee document alleged to have been signed by Ms Lavater, there is, given the nature of the underlying ownership of the substantive first registered mortgage securities held over both the Cale Street and Eric Street properties, a strong likelihood of the Bank requiring these advances to be secured under commitments binding upon all joint owners of each of those mortgaged properties at those times (namely, by both Mr Collopy and Ms Lavater).
The three loan amounts claimed at trial as arrears under Loans A, B and C, now exceed $1 million. They are the subject of a prima facie evidence certificate tendered as exhibit 3 at the trial - in respect of the amounts said by the Bank to be due under the three loans: George 218 Pty Ltd v Bank of Queensland Ltd [2015] WASC 434 [247].
There was no dispute raised at the trial, by way of any countervailing evidence, from the defendant raising any arguments about the computation of the claimed amounts pursued by the Bank.
Nor was there any apparent issue raised over a due receipt by the defendant (in any capacity) concerning notices of default as issued by the Bank in respect of the first and second loan agreements on 8 October 2015 and then a notice of default given by the Bank to Ms Lavater as to an event of default under the third loan agreement and under her guarantee on 8 October 2015.
Whilst it is clear that Ms Lavater, both by her pleadings and as articulated through her counsel at the trial, disputed the defendant's liability in respect of loans A, B and C in any capacity, the true essence of her challenges to her (or the estate's) liability was grounded essentially on just three planks of defence that I will describe below.
First, Ms Lavater, as I indicated, held the Bank to a strict proof of its case at the trial, particularly in respect of the genuineness of her own signatures and of some of her husband's on the loan and guarantee documentation for Loans A, B and C of which the Bank relied upon.
Second, Ms Lavater, through her pleadings and through counsel, sought to invoke to her defence, s 286 of the Corporations Act 2001 (Cth) by asserting an obligation of Bankwest and, later, of the Bank (as successor in title) as lending institutions to keep proper business records for a period of seven years following each relevant transaction.
As the trial proceeded, however, two matters emerged concerning and undermining the s 286 as articulated defence. First, no underlying trial facts emerged to show that there had been a failure to keep proper records in respect of any relevant seven-year period. The alleged failure was simply not established as a matter of evidence at the trial. That end position as a matter of fact would appear to have been at least implicitly accepted by the time defendant counsel was closing his case on day four of the trial (see ts 368). Little in the nature of any submission was made upon this suggested s 286 defence in closing. Second, as a matter of law, it became very apparent that, even if this provision had ever been transgressed as regards proving (hypothetically) a failure to keep records by Bankwest or the Bank, that such a transgression would not in law provide any basis of illegality, or raise some other statutory obstacle against the Bank otherwise recovering moneys due and payable to it under any outstanding loan, or upon a responding guarantee commitment (ts 361 - 364).
Lastly, there had been a somewhat sweeping pleaded contention of unconscionable conduct put by the defendant as against Bankwest (or the Bank) detectable from the defendant's pleadings and in its written opening trial submissions. However, no basis in law or fact for such a contention ever emerged at the trial. No position of special disadvantage in Ms Lavater was ever pointed to. No closing submission was made to such end by counsel for Ms Lavater. Consequently, I do no more than simply mention that unconscionable conduct defence plea as a starting aberration at this trial - but which was not then pursued and certainly not proved from the trial evidence.

The proven essentials

The next section of the reasons will collect essential findings of fact from all the evidence adduced at the trial.
Essentially, the case of the Bank was based upon its own documents which were tendered and which in the main were demonstrably in the nature of admissible business records.
This trial documentation includes the two Bankwest loan agreements of 9 September 2002, some subsequent written variations to them as regards increases in lending limits in 2004 and the surrounding first registered mortgage security documentation as is relied upon by the Bank. In respect of Loan C and the personal guarantee of Ms Lavater, applications ostensibly signed by Mr Collopy were produced along with guarantee documentation at issue (exhibit 1.28) which was disputed by Ms Lavater - but which, on all the evidence, I have found was agreed to and signed by her.
The Bank also called two lay witnesses at the trial. I have already mentioned Mr John Ganas (the Bank's handwriting expert). Bank employees Mr Geoffrey Kent and Ms Kylie Thornton gave evidence essentially directed towards explaining Bankwest and the Bank's lending procedures and business record keeping systems which, unsurprisingly, were largely computer based. Their evidence, which I accept, may be found across witness statements exhibits 4, 5A and 5B, which were tendered.
Both Mr Kent and Ms Thornton were cross-examined by the defendant's counsel. Nothing of any substance emerged out of their cross‑examinations to provide me any cause for concern about the correctness or reliability of their evidence. There was a small issue raised concerning the assembly of all the original documents said to have been sourced from a single security document packet as used by Bankwest for Mr Collopy and Ms Lavater's borrowing transactions - as was explained in Ms Thornton's first witness statement: see par 10 of exhibit 5A. Some issue was sought to be made about that during cross‑examination, during which it emerged that Ms Thornton had, essentially, been provided with original documents sourced from the security packet by the Bank's solicitors. But nothing, to my mind, of any sinister character emerges from that, particularly given a long historical antecedence of this dispute and very long delays associated with a progression of Mr Lavater's complaints through the Financial Ombudsman Service between 2012 and 2015. As a result of complaints laid with that non-curial institution by Ms Lavater, it is very likely that original Bankwest documentation would have been called for and trawled over by the Bank's lawyers as that earlier complaints process slowly unfolded over some years.

During the cross‑examination of Mr Kent there was also an attempt to diminish his evidence by a suggestion put to him that documents had been manufactured for the purposes of this trial from the Bank's electronic database concerning original advances which were produced: see exhibits 1.78 and 1.80. This criticism was completely misconceived. What I conclude occurred was a legitimate series of enquiries by Mr Kent and a subordinate, by them properly accessing the Bank's computer based record system - in order to capture a view of what that record system displayed concerning the records of the advances made in respect of Loans A and B. No new document was artificially constructed just for the purposes of the trial in that exercise. Rather, the Bank's longstanding records from the computer database was accessed to view the as recorded information. For the purposes of the trial some screenshots of the data as displayed in that process of enquiry was then printed in hard copy form - for the purposes of being adduced in evidence. There was nothing inappropriate or unusual about an exercise of interrogating the Bank's records to access and display this routinely recorded business information.
The remaining witness called at the trial was the defendant herself, Ms Lavater. She presented to me as an intelligent and articulate woman. At the end of her evidence I took the opportunity to elicit from her some of her impressive tertiary qualifications: see ts 332. She holds a Diploma of Teaching and a Graduate Diploma of Computer Studies with a specialisation in systems analysis and design. Regrettably, however, I cannot accept her evidence in controversial areas.
By no sensible measure could Ms Lavater ever be described as a woman lacking in the requisite levels of core intelligence - in terms of her holding a full capacity to comprehend the multiple lending transactions she and her husband had very clearly committed to relevantly with Bankwest in and after 2002 and throughout 2004.
In 2002 it seems clear that there had been a family plan to demolish the existing residence at Cale Street, Como, and then rebuild a new home, built by Webb & Brown Neaves. It may very well be correct that the prime mover in respect of that demolition and rebuild project was Ms Lavater's late husband at the time and not her. But clearly she knew of it and was involved, especially when the family moved to rental accommodation to facilitate the rebuild project at Cale Street.
I would also accept that in 2002 to 2004 Ms Lavater was likely to have been heavily committed at that time to the needs of three young children and with her continuing post graduate studies. That may all be accepted. But in the end it is irrelevant to what were then and remain as her clear legal obligations arising consequent upon her commitment to the lending arrangements with Bankwest which she committed to with her late husband.
Ms Lavater is bound by those commitments: see Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8; (2002) 209 CLR 95 (Gleeson J) concerning the legal effects of a signature applied to a document.
Moreover, I find that in the 14‑month period after her late husband's death from April 2007 leading up to June 2008, Ms Lavater had a full opportunity to familiarise herself with and to gain a full understanding of and personally come to grips with, all these earlier loan arrangements. In fact, in that period I would conclude that she did come to appreciate her financial exposure position. It was Ms Lavater who caused steps to be taken for one of the real properties now fully owned by her, namely the Eric Street property (passing to her under survivorship principles) to be sold off in 2008 in the wake of her late husband's death.
Bankwest discharged its mortgage over Eric Street at that time to facilitate a sale. Essentially, the net proceeds from the 2008 sale of Eric Street were used then towards reducing the levels of the indebtedness upon Loans A and B. In fact, the level of indebtedness on Loan A was then reduced down to $0 at 30 June 2008.
So the position as at 30 June 2008, some 14 months after Mr Collopy's death, was a residual exposure for Ms Lavater upon three loans, A, B and C, to the Bank (and for Mr Collopy's estate) to an extent of $317,671.78 and comprised of:
(a)a $0 exposure on Loan A;
(b)a $190,392.78 exposure on Loan B; and
(c)a $127,279 exposure on Loan C.
At 30 June 2008, those three loan advances were secured by the Bank's first registered mortgage as was still held over Cale Street - and where the new residence had been built for Ms Lavater and Mr Collopy some time between 2003 and 2005 by Webb & Brown Neaves. Ms Lavater now resided there with her three children.
What looks to have followed, however, in the almost 10 years which have elapsed since June 2008 is a wholly misguided or irrational assessment by Ms Lavater of her exposure to Bankwest and the Bank. Whether that stems from bad advice or from some personally misguided failure by Ms Lavater to accept what is obvious, is not a question capable of being answered at the trial. However, what is clear is that almost a decade's worth of denials and complaints by her to the Financial Ombudsman Service made against Bankwest or to the Bank has been most foolish behaviour. It has, along with a non-servicing of the three loans and an accrual of interest and fees over time, led in 2018 to a significantly greater exposure than ever needed to be the case had common sense prevailed about a decade ago.
I will next proceed to record a series of further findings of fact in respect of the trial evidence. It will be no surprise, however, to say at this point that I conclude in the end that Ms Lavater, in all her capacities, is liable in respect of the indebtedness due on three loans as claimed by the Bank against her.
I have given the Bank leave at the trial to provide an updated prima facie evidence certificate concerning the level of indebtedness as at the date of delivery of these reasons and it follows that, if they are in order, there will be judgment in that amount against Ms Lavater accordingly.

More trial evidence and findings

A trial bundle (exhibit 1) tendered at the trial spanned two lever arch volumes. By the end of the trial it contained tabulated documents 1 through 85 - received formally as sub-exhibits 1.1 through to 1.85.
After a series of initial arguments, in the end all documents within volume 1 of the trial bundle (being exhibits 1.1 through 1.76) came to be tendered with objection by the defendant (ts 101, 207 and 208).
As regards volume 2 of the trial bundle (containing documents 1.77 through 1.85) there was a level of controversy over the receipt into evidence of documents 1.77, 1.78 and 1.80. In the end, I permitted those documents to be introduced into evidence at trial at the behest of the plaintiff, essentially as the proven business records of the Bank. In this process some side issues emerged concerning the suggested incompleteness in some of the Bankwest records. But that did not detract from the admissibility of the substantial number of records that were produced by the Bank.
Exhibit 1.81 is seen to be a series of bank statements as was produced by the Bank in respect of Loan A, canvassing the period from January 2007 (under bank statement numbered 19, page 434) running through to January 2017 (see bank statement number 54 at page 482).
The defendant sought to make something of the fact that statements were not available at trial in the period from September 2002 at the inception of the loan account for Loan A under account number (ending 662‑3). But running bank statements produced for this account from January 2007 are seen to precede the death of the late Mr Collopy in April 2007. They show the running of the account for a period that is in excess of a decade. I would conclude yet again that there is nothing sinister or irregular in relation to an inability of the Bank to provide all the bank statements starting at 2002 for this account. To the contrary, I find that the absences in the period at issue (2002‑2006) is perfectly consistent with this Bank's routine data archiving and purging policy in respect of records, as was coherently explained by Mr Kent in his evidence at trial under cross‑examination.
It is also noteworthy following the running of this account over time to remember that the debit balance (upon a limit of $347,046.62) of Loan A came to be reduced to $0 by 30 June 2008: see bank statement number 24, TB page 439 and 440. Thereafter, drawings against the facility causing it to return to debit and then eventually to exceed the monetary limits of the facility (as at 7 April 2009, see statement number 27, TB page 444) necessarily all occurred at the behest of Ms Lavater, who controlled the operation of that account after her husband's death in April 2007.
A similar documentary record position manifests in relation to Loan B, with bank statements in respect of this account number ending 040-0 also found in volume 2 of the trial bundle as exhibit 1.79. Statements produced at trial for the Loan B account only commence at statement number 13 (TB page 382) showing from then an opening balance at September 2005, being a sum slightly in excess of the limit of that account at $274,481.06 debit.
At the time of Mr Collopy's death in April 2007 the debit balance of Loan B was effectively at the limit of that account, with a debit balance of $265,312.30: see statement number 19 for Loan B at TB page 389.
Some 14 months later, at 30 June 2008, with an injection of part of the funds realised following the sale of the Eric Street, Como property (of $77,825.33), the debit balance of this account was reduced down to $190,392.78 debit: see statement 24, TB page 394.
The debit balance of the Loan B account was further reduced to $90,392.78 at 7 July 2008. That improvement was a result of a withdrawal of $100,000 against the (then) zero balance of Loan A, causing the Loan A account to return to debit to that extent (of $100,000), but correlatively seeing Loan B diminished by the same $100,000 amount. Ms Lavater must have been making those decisions.
All those events must be solely attributable to decisions by Ms Lavater during the 14‑month period to 30 June 2008, after her late husband's death and in the wake of her decision to sell the Eric Street, Como property.
In respect of Loan C, exhibit 1.82 found in volume 2 of the trial bundle displays bank statements for that account (account numbered ending 161-0) albeit commencing only from the period 9 November 2005 (see statement number 18, see TB page 483).
The as produced bank statements on Loan C extend to page 575 of the trial bundle, running up to statement number 110. They show a debit balance of that account as at 9 January 2017 of $235,595.80. Unlike Loans A and B, this third loan was never significantly reduced in the period following Mr Collopy's death by any credit amounts received following a realisation of the Eric Street property in 2008.
Statement 24 at TB page 490 shows that upon a credit of $26,253.72 being received from the late Mr Collopy's employer, Caystar Management Holdings, in June 2007, that Loan C's debit balance was reduced down to some $110,831.35. But funeral expenses of $2,600 incurred to Oakwood on 1 June 2007 as a debit against the level of the account saw it rise at that date at a debit balance of $113,441.35.
Essentially, succeeding bank statements running for Loan C show debits in the nature of capitalised interest and fees have subsequently and steadily accrued over time, but without credits of any significant magnitude to offset the balance of this loan account since June 2007 and so contributing to its current high level of indebtedness.
Again criticisms were made by counsel for the defendant to the effect that the bank statements provided for Loan C were incomplete in terms of not going back to the inception of this account in 2003. The criticisms, however, are desperate and carping and, again, without any legal substance.

Findings: Loan A

Documentation tendered within the trial bundle concerning Loan A commences with exhibit 1.14. That is a Bankwest Home Loan Contract for a Gold Home Loan - Construction (interest only). The amount of the loan is identified at $312,445.90. I divert to observe that on the very same day a second loan contract (Loan B) was agreed to by Bankwest with Mr Collopy and Ms Lavater (as Sally Anne Collopy) under a Bankwest Home Loan Contract - Gold Home Loan (no intro) (see exhibit 1.15) and in the amount of $179,950.69.
Signatures of Mr Collopy and Ms Lavater (as Sally Anne Collopy) look to have been applied to both loan contracts as borrowers - thereby accepting the terms of the offers of Bankwest to advance funds under the terms and conditions of each loan agreement on 9 September 2002: as regards Loan A, see TB page 140 and, as regards Loan B, see TB page 158. That is my finding on the evidence.
Contextually relevant to these loans at the time is a (residential) construction agreement entered by Mr Collopy and Ms Lavater (as Sally Anne Collopy) with a well‑known Perth builder, Webb & Brown Neaves, showing an amended date of 24 January 2002 (see exhibit 1.9). The document details a commitment by Mr Collopy and Ms Lavater in terms of interim payments promised to the builder after demolition of the existing house at Cale Street, Como (see item 22 on TB page 59). This can be seen at exhibit 1.9 (TB page 57) in amounts then identified culminating in a price of $279,239 payable to the builder.
Loan A is described under page 8 of the loan agreement (TB page 128), as regards the purpose of that loan, in terms:
To assist with construction of owner occupied dwelling, finance mortgage protection and fees.
That was the new residential dwelling to be constructed for Mr Collopy and his wife at Cale Street, Como.
A disbursement of the funds by Bankwest on instructions for Loan A can be seen at TB page 128 - in an aggregate amount of $312,445.90, but with amounts disbursable to a builder as referred (Webb & Brown Neaves) but via progress payments as being 'not ascertainable'.
Exhibit 1.16 is a Mortgagor's/Guarantor's Consent form carrying signatures for Mr Collopy and Ms Lavater (as Sally Anne Collopy) and the endorsed date 9 September 2012 in relation to a provision of their consents to mortgage as security to Bankwest over two properties, namely, the Eric Street, Como property and the Cale Street property. That was by way of security for the credit contract (Gold Intro Construction Home Loan) as offered to Mr Collopy and Ms Lavater (as Sally Anne Collopy) on 6 September 2002 (see box A, TB page 159). The dates of the as identified registered mortgages then held by the Bank in respect of the two properties is seen respectively as 7 January 1994 (in respect of Eric Street, Como) and 23 April 1998 (in respect of Cale Street, Como). Hence it was that Mr Collopy and Ms Lavater (as Sally Anne Collopy) in September 2002 were essentially agreeing that their existing mortgage security arrangements (which were 'all moneys' mortgages) would now extend to cover and secure the newly entered lending commitments for Loan A and Loan B which they had reached with Bankwest in September 2002.
The next document I note is exhibit 1.80 found in volume 2 of the trial bundle, page 427. This is a screenshot showing advances in respect of the account created by Bankwest for Loan A (ending in number 662-3). The first of a series of screen shots shows Bankwest disbursements made under this account in amounts commencing as at 23 September 2002 with an advance of $6,528.80.
Ensuing screenshots then provide greater elaboration concerning each of the multiple advances as collected and seen assembled under the first screenshot - across the period 23 September 2002 until 12 September 2008.
There are some 11 advances of funds collected under those screenshots across that period. The last two advances, in the amounts of $100,000 for 7 July 2008, then the amount of $250,098.85 on 12 September 2008, both clearly occurred after Mr Collopy's death (of April 2007).
Screenshots within this exhibit record the destinations to which funds were then advanced by Bankwest under Loan A, at the behest of Mr Collopy and Ms Lavater, at the dates as listed. The progressive nature of the advances under Loan A is fully consistent with advances being made under an instalment regime of payments to a builder as required to be made over time, as building works are being performed and progressively completed for Mr Collopy and Ms Lavater. Periodic payments are made from and made by the party commissioning the building works as the works advance over time. Further documents applicable for Loan A include exhibits 1.31, 1.32, 1.36 and 1.37. They provide even more evidence of an application for some extra funds by Mr Collopy and Ms Lavater (as Sally Anne Collopy) as borrowers upon the Loan A facility and resulting in the limit of Loan A being increased upwards by some $43,000.75 (see exhibit 1.37 TB page 226) at 17 May 2004.
Invariably, the underlying security for Loan A as identified for the increased limit to the loan facility is seen to be secured by reference to Bankwest's registered mortgage numbers F428445 (Eric Street, Como) and G779612 (Cale Street, Como) is identified (see TB page 227).
One notation found in exhibit 1.36 (which is a Bankwest comments history sheet made by a person at Bankwest identified as Vicky Goodwin) records that $356,840.58 had been disbursed on this loan at 25 May 2004. That amount is essentially in harmony with the aggregation of the amounts to that date as seen under the first screenshot of exhibit 1.80 seen at TB page 427.
A repayment of some Loan A debt occurred upon the sale by Ms Lavater of the Eric Street, Como property in June 2008. That outcome is evidenced in exhibit 1.56 TB page 277, indicating an amount from the sale proceeds in the sum of $349,972.52 was then applied to extinguish the indebtedness on Loan A at that time. Bank statements for this account seen at exhibit 1.81, to which I have already referred, show a credit at 30 June 2008 resulting in a $0 balance on the facility at that time.
The last two screenshots for this account seen on TB pages 432 and 433 respectively record later advances of $100,000, then $250,098.85 drawn against the limit of this account and after 30 June 2008. Those redrawn funds on Loan A by Ms Lavater occurring after 30 June 2008 have not been repaid following proper demand, which is admitted.

Findings: Loan B

As mentioned, this written loan agreement carries the same date of acceptance by the borrowers, Mr Collopy and Ms Lavater (as Sally Anne Collopy), as for Loan A, namely, 9 September 2002: see exhibit 1.15, TB page 158.
Loan B is a 'Gold Home Loan'. The amount of an initial credit can be identified as offered by the Bank at TB page 141, for $179,950.69. Unlike Loan A, Loan B was not a construction and interest only advance.
Loan B's purpose was described at TB page 147 in terms:
Purpose of the loan: To assist with refinance of existing Bankwest debt and finance mortgage protection.
By following disbursement instructions, one of the items identified as a purpose for Loan B was to pay out an existing Bankwest loan seen carrying number 051-030661-5 - but in an amount that was said to be 'not ascertainable'. That description was followed by the envisaged making of further advances under Loan B to be 'at the direction of the borrower', but also described as 'not ascertainable'. A further amount to be discharged on this Loan B is identified as an advance to 'St Andrew's Insurance - mortgage protection' in the amount of $1,408.69, all culminating in the advance of an approved amount on Loan B, of some $179,950.69.
Such Loan B advance amounts are fully consistent with the data records of the Bank as displayed under screenshots found in exhibit 1.78. They record two advances under this loan account. The first is on 20 September 2002. It is in the amount of $179,950.69 (representing the approved amount of that Loan B advance at that time).

The next screenshot (below the first) at TB page 380 identifies an application of funds in the amount of $178,284.29 recorded to close the account 051‑030661‑5, but leaving an amount of $257.71 in surplus.
Counsel for the defendant sought to make something of a lack of documentation provided by the Bank in respect of that Bankwest account number 051‑030661‑5 in these proceedings. He suggested that this was inconsistent with a later application of realised funds at 30 June 2008 in respect of another loan then paid out with Bankwest in respect of Cale Street upon another loan account, with account number 089‑021652-2, paid out in 2008 - by then applying funds in the amount of $138,622.71. The argument essentially sought to make something out of nothing on this point as to a use of the Loan B advance in 2002. This, in the end, went nowhere.
I find that the funds advanced under Loan B in 2002 were properly and legitimately advanced, as accords with the first two screen shots as seen at exhibit 1.78 at TB page 380 at the behest of Mr Collopy and Ms Lavater in September 2002 and to their benefit.
As with Loan A, there then followed for Loan B a subsequent application by the borrowers for an increased loan by way of a variation upward in the amount of this Loan B. That variation application is evidenced by exhibits 1.33 and 1.35 in respect of the proposed variation to Loan B, by the approval of a further advance to the borrowers in the amount of a further tranche of $100,959.94 (TB page 211).
That further advance of funds under Loan B is consistent with a second entry in respect of the first screenshot seen under exhibit 1.78, volume 2, TB page 380, showing an advance of $101,312.41 under that account and upon Loan B on 25 February 2004.
The last of the three screenshots in that exhibit, TB page 381, identifies the disbursal amount and date.
Exhibit 1.56 records that following the sale of Eric Street in June 2008 there was indeed an application of some funds in the amount of $77,825.33 to be put against the Loan B indebtedness at that time. That position is consistent with bank statements as provided under exhibit 1.79 for Loan B: see particularly as for 30 June 2008 at TB page 394. Again I would note exhibit 1.56, being the 1 July 2008 communication to Ms Lavater from Bankwest in respect of the disbursal of funds from realised sale proceeds out of the sale of the Eric Street, Como property in 2008.

Findings: Loan C

The documentary record in respect of Loan C to Mr Collopy commences with a Bankwest Home Loan Gold Equity Release document, which is exhibit 1.27. This indicates a disclosure date of 24 October 2003 for a credit limit of $100,000. The proposed security for this loan, seen at the foot of page 3, is once again the 'all moneys' mortgages as held by Bankwest over Cale Street and over the Eric Street property and, significantly, a guarantee from Ms Lavater (as Sally Anne Collopy). The document looks to carry Mr Collopy's signature and the adjacent longhand inserted date of 18 December 2003.
Relevant to Loan C is also exhibit 1.22, which is the comments history sheet maintained by the Bank's officers, indicating a submission of the application for a $100,000 facility and with an assessment recommendation by Michelle O'Neil on behalf of Bankwest, on 27 September 2003. Assessment of this application by Mr Collopy took some time. That was due to what appears to be a request for updated valuations in respect of the two underlying mortgage security properties (ie, Eric Street and Cale Street, Como) so as to 'bring LVR' (loan value ratio) 'under 80%': see TB page 174 for the entry by Ann Ernslie of 29 September 2003.
Conditional loan approvals duly followed. However, there was no unconditional approval, it would appear (see TB page 173 entry of 15 October 2003) for some time. There were then some further matters as identified in the comments history concerning execution of documentation and the like. An entry of 22 January 2004 by Michelle O'Neil said:
Mark Collopy contacted me today to say he has faxed … mortgage, however I let him know that we need an original, so he has posted from Ghana, direct to WA Yellow, today. Should reach you by middle of next week.
The comments notation for 29 January 2004 indicates that a contract and security documents were signed and returned - as would be expected. Later, at 29 January 2004 it is recorded that the $100,000 equity line loan was disbursed: see TB page 172.
Exhibit 1.28 presents as a Consumer Guarantee and Indemnity instrument (see TB page 196) which was disputed at trial by Ms Lavater as carrying her genuine signature. However, I have found on the evidence that it was, indeed, signed by her.
Exhibit 1.29 shows the consents of Ms Lavater (as Sally Anne Collopy) and of Mr Collopy with endorsed dates seen under their respective signatures of 18 December 2003 thereby agreeing that the Eric Street, Como and Cale Street, Como properties were then consented to as securing Mr Collopy's further proposed (ie, Loan C) borrowings under this Gold Equity Release loan credit contract of 24 October 2003 (consistent with the face of exhibit 1.27). See also the consent signature of Ms Lavater (as Sally Anne Collopy) also appearing over the date 18 December 2003 at TB page 198.
It is likely Ms Lavater would have executed a statutory declaration (exhibit 1.30) in front of the 'chemist' at Applecross at the date of 19 December 2003. I reach that finding notwithstanding her contrary evidence and the content of exhibit 8, which was a tendered statutory declaration by a pharmacist, Jeremy McLernon, of 22 May 2015.
The statutory declaration at exhibit 1.30 carries the date 19 December 2003. It identifies a Sally Anne Collopy as a guarantor who has received independent legal advice and who has signed the guarantee document freely. I conclude then that Ms Lavater likely signed the undated guarantee document (exhibit 1.28) on 18 or 19 December 2003. The original document looks to have been posted back to Perth from Ghana (see TB page 172) by Mr Collopy as the Bankwest comments history sheet records.
There later followed another application by Mr Collopy for an increase in the amount of this loan to him, by a further $40,000 (see exhibit 1.38 reflecting that application) noting the $140,000 figure at TB page 229. The comments history sheet (exhibit 1.39) shows a conditional assessment of this application for further funds began as at 12 October 2004 (bottom entry TB page 236).
At 12 October 2004, by a notation 'funds required to complete renovations on owner occupied home', the variation application was conditionally approved. At 18 October 2014, Shana Read of Bankwest noted on the comments sheet:
Contract, MGC and stat dec completed and held with deal. Deal to reception desk on 127 for Kathy to collect. Rang Kathy and informed her deal completed.
A notation for 20 October 2004 (TB page 235) under a heading Equity Line records that $140,000 was (in total, I would infer) disbursed that day. That advance position is confirmed by exhibit 1.40, which is a Bankwest Home Loan Contract Gold Equity Release carrying a signature of Mr Collopy (TB page 241) and bearing an adjacent date of 19 October 2004 in the amount of $140,000 (see TB page 237).
The last page of exhibit 1.41, TB page 243, displays a signature of Sally Anne Collopy. A date seen underneath of 19 October 2004 concerning this adjustment to the loan documentation is by way of variation. Above the signature of Ms Lavater (as Sally Anne Collopy) appears the notation:
Guarantors liability under guarantee: Previously $100,000 now limited to $140,000.
Exhibit 1.42 is a statutory declaration of 2004. It does not carry a designated month endorsement, due to an obvious conflation error. It presents, however, as a pharmacist's witnessing of Ms Lavater's signature (as Sally Anne Collopy) at that time at the Garden City Pharmacy. That is fully consistent with her application of her signature giving her consent as a guarantor to an increase in her exposure upon the increased funds advanced to her husband under Loan C - upwards then from $100,000 to $140,000 as at 19 October 2004. I so find.
The Loan C lending arrangements as varied, with a limit on the facility of $140,000 for the late Mr Collopy from October 2004, are all consistent with the located tranche of bank statements for the Loan C account commencing from 9 November 2005 as found under volume 2 of the trial bundle: see exhibit 1.82, see TB pages 483 and following.
There was evidence at the trial concerning regular inwards payments of Mr Collopy's income from his overseas employer into that account together with other amounts from time to time prior to his death on 11 April 2007.
Mr Collopy would appear to have used his Loan C credit facility account for his Perth household and other domestic expenditures, especially at times when he returned to Western Australia in the brief periods when he was not working overseas in Africa. None of that is remotely unusual or concerning.

Conclusions as regards Loans A, B and C

In conclusion, I find that advances by Bankwest under each of the three loans the subject of its statement of claim are proved. Also proved is the non‑repayment of that indebtedness by Mr Collopy's estate and by Ms Lavater (as a co-borrower in respect of Loans A and B and as a guarantor in respect of Loan C).
As I indicated, a Bankwest first mortgage security held over the property at Eric Street, Como was discharged when that property was sold by Ms Lavater in about June 2008. Net sale proceeds were essentially applied towards reducing the overall level of the indebtedness under Loans A and B, as was explained under exhibit 1.56. That was the Bank's written communication of 1 July 2008 to Ms Lavater about that at the time.
Subsequent events to 30 June 2008, however, saw substantial redrawings against Loans A and B made by Ms Lavater.
In respect of Loan C, there has been a failure to make any substantive reduction against that loan since Mr Collopy's death in April 2007. Fees and interest have continued to accrue.
Consequently, the claimed indebtedness of the Bank is established. It has been established in the amount the subject of exhibit 3 as at the commencement of the trial. But I have afforded leave to the plaintiff to provide an updated certificate in respect of a current state of indebtedness in respect of all three loans as at the publication of these reasons. There will be judgment for it in that amount against the estate and against Ms Lavater personally.
The Bank's residual first mortgage security in respect of all debts is still held over the property at Cale Street, Como under mortgage G779612: see exhibit 1.5 in that respect.
As a part of the relief claimed under its statement of claim the Bank seeks orders for possession of the Cale Street property by way of execution in respect of the now proven and unrepaid debts. The Bank, under the terms of its mortgage security arrangements, is entitled to that relief: see memorandum of provisions referred to under exhibit 1.5 at TB page 37, at cl 2.1, referring to memorandum of provisions numbered G308557, the terms of which are at exhibit 1.2 in particular (as regards possession, see cl 20.3(b), TB page 12). The entitlement to possession is also established.
There should be judgment against the defendant accordingly, both her personal capacity and as administrator of her late husband's estate.