CTC Group Pty Ltd v Perpetual Trustee Company Limited

[2013] HCASL 16

CTC GROUP PTY LTD

V

PERPETUAL TRUSTEE COMPANY LIMITED

[2013] HCASL 16
S250/2012

1. The applicant ("CTC") submitted an application for a secured loan in the sum of $480,000 to be advanced by the respondent, Perpetual Trustee Company Limited ("Perpetual") to Mr David El-Bayeh.  Attached to the application was a form apparently signed by Mr El-Bayeh together with a document signed by Mr Naaman of CTC verifying Mr El-Bayeh's identity as the loan applicant.  Funds were subsequently advanced pursuant to a loan agreement, which was also apparently signed by Mr El-Bayeh.

2. Perpetual commenced proceedings in the Supreme Court of New South Wales against Mr El-Bayeh and CTC following default under the loan agreement.  The primary judge (McCallum J) accepted Mr El-Bayeh's evidence that the signatures on the loan application, loan agreement and mortgage were forgeries.  Her Honour was not satisfied that CTC was in breach of the terms of a deed between CTC and Perpetual, which required it to take reasonable care to identify the proposed borrower.  The proceedings against each of the defendants were dismissed.

3. The Court of Appeal of New South Wales (Macfarlan, Meagher and Barrett JJA) upheld Perpetual's appeal against the dismissal of its claim against CTC.  The Court found, contrary to the view taken by the primary judge, that it was probable that Mr Naaman had not compared the original passport photograph with any person purporting to be Mr El-Bayeh.  It observed that a comparison between an individual and an original passport photograph provides a highly reliable means of identification[1].  A further reason for upholding Perpetual's appeal was a statement made by CTC's managing director, Michael Saadie, to Mr El-Bayeh, which the Court of Appeal held amounted to an admission that CTC submitted the loan application to Perpetual without interviewing the applicant[2].

   [1]Perpetual Trustee Company Ltd v CTC Group Pty Ltd [2012] NSWCA 252 at [27]-[28].

   [2]Perpetual Trustee Company Ltd v CTC Group Pty Ltd [2012] NSWCA 252 at [30]-[31].

4. The applicant seeks special leave to appeal.  No question of law of public importance is raised by the application, which seeks to canvass unremarkable conclusions drawn by the Court of Appeal from the unchallenged evidence.  If special leave were granted the appeal would have insufficient prospects of success.

5. The application is refused.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

J.D. Heydon
26 February 2013 V.M. Bell