Dewar v Ollier

[2018] WASC 212

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   DEWAR -v- OLLIER [2018] WASC 212

CORAM:   TOTTLE J

HEARD:   24-28 JULY & 30 OCTOBER 2017 & FINAL SUBMISSIONS FILED 10 NOVEMBER 2017

DELIVERED          :   19 JULY 2018

FILE NO/S:   CIV 1803 of 2015

BETWEEN:   CORINNA EVANGELINE DEWAR

Plaintiff

AND

SEBASTIEN OLLIER

First Defendant

ATNAM PTY LTD

Second Defendant

ANDREW JAMES WALKER

Third Defendant

ANDTRAC PTY LTD

Fourth Defendant

Catchwords:

Finance  broker - Breach of contract - Negligence - Where finance broker included inaccurate statements in documents supporting application for loan - Where broker under duty and obligation to render services with reasonable skill, care and diligence - Whether inclusion of inaccurate statements constitute breach of duty - Whether loan would have been approved if information accurately recorded

Agency - Existence of agency relationship - Where one finance broker arranges for clients to sign agreements with other broker - Where commission sharing arrangement - Where actual authority inferred - Whether first defendant agent of fourth defendant

Contributory negligence - Contract and tort - Whether plaintiff contributorily negligent - Plaintiff’s contribution to loss assessed at 60%

Damages - Mitigation - Where plaintiff failed to sell property after falling into arrears with mortgage repayments - Where plaintiff defended possession proceedings - Whether plaintiff failed to mitigate loss

Misleading or deceptive conduct - Whether first defendant made representations to plaintiff regarding loan - Whether representation that defendant would obtain most suitable loan for plaintiff’s circumstances misleading or deceptive

Unconscionable conduct under the general law and under Australian Securities and Investment Commission Act 2001 (Cth) s 12CB - Where plaintiff argues special disadvantage on basis of lack of education in financial matters or lack of financial and commercial experience - Whether plaintiff unable to protect her interests in completing loan documentation - Whether plaintiff at a special disadvantage - No special disadvantage made out

Fiduciary duties - Where duty to render finance broking services with reasonable skill and diligence not fiduciary - No conflict rule - Whether defendants breached duty not to act in their own interests in conflict with plaintiff's interests

Limitation periods - Limitation Act 2005 (WA) s 13 - Where limitation periods expired - Where self-represented plaintiff made no application for extension of limitation periods - Where delay in commencing the action not attributable to conduct on part of defendants

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth), s 12BAA, s 12BAB, s 12CB, s 12DA, s 12GF, s 12GH
Civil Liability Act 2002 (WA), s 5A(2), s 5C(1), s 5D, s 5K
Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA), s 4
Limitation Act 2005 (WA), s 13, s 38(2)

Result:

Action dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	In Person
First Defendant	:	Mr AJ Musikanth & Mr JC Van Der Walt
Second Defendant	:	Mr N Morrissey
Third Defendant	:	Mr N Morrissey
Fourth Defendant	:	Mr N Morrissey

Solicitors:

Plaintiff	:	In Person
First Defendant	:	Jackson McDonald
Second Defendant	:	Chad Silver & Associates
Third Defendant	:	Chad Silver & Associates
Fourth Defendant	:	Chad Silver & Associates

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

Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1

Australia and New Zealand Banking Group v Dziencial [2001] WASC 305

Branwhite v Worcester Works Finance Ltd (1969) 1 AC 552, 587

British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304

Collard v State of Western Australia [2013] WASC 45

Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234

Equiticorp Finance Ltd (in Liq) v Bank of New Zealand (1993) 32 NSWLR 50

Flounders v Millar [2007] NSWCA 238

Forster v Outred & Co [1982] 1 WLR 86

GEL Custodians Pty Ltd v Dewar [2014] WASC 177

Google Inc v Australian Competition and Consumer Commission (ACCC) [2013] HCA 1; (2013) 249 CLR 435

Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539

International Harvester Co of Australia v Carrigan's Hazeldene Pastoral Contract (1958) 100 CLR 644

Karam v ANZ Banking Group Ltd [2001] NSWSC 709

Kenny & Good Ltd v MGICA [1999] HCA 25; (1999) 199 CLR 413

Perpetual Trustees Australia Limited v Schmidt [2010] VSC 76

Press v Mathers [1927] VLR 326

Richardson v Schultz (1980) 25 SASR 1

Scott v Davis [2000] HCA 52; (2000) 204 CLR 333

Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275

Siegwerk Australia Pty Ltd (in liquidation) v Nuplex Industries (Aust) Pty Ltd [2013] FCAFC 130

Smith v Town & Country Bank (Unreported, FCt SCt of WA; Library No 970716; 18 December 1997)

South Sydney District Rugby League Football Club v News Ltd (2000) 177 ALR 611

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165

Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514

Watson v Foxman (1995) 49 NSWLR 315

TABLE OF CONTENTS

Summary

The issues

The witnesses

The facts

Ms Dewar's personal and work background

17 Mint Circuit, Banksia Grove

Mr Ollier, Mr Walker, Andtrac and Atnam

Events leading to Ms Dewar's first contact with Mr Ollier

Ms Dewar's indebtedness to Keystart

Ms Dewar's telephone enquiry

2 April 2007 meeting

Ms Dewar's pleaded case and her evidence

Mr Libotte's evidence

Mr Ollier's evidence about the April meeting

2 April 2007 meeting - findings

Events between 2 April and 13 August 2007

August 2007 meeting

September 2007

Ms Dewar decides not to proceed

Ms Dewar decides to proceed

RAMS application

Finance Broking Agreement

RAMS application unsuccessful

20 November 2007 meeting and the Wholesale Funds application

Who attended the 20 November 2007 meeting?

The information included in the Mortgage Loan Application

The Loan Purpose Checklist

Fastdoc Declaration of Financial Position

Record of interview

Mortgage Loan Summary

Ms Dewar's understanding of the likely monthly repayments and her assessment of her financial capacity

Lending criteria for Fastdoc70 loan

The processing of the loan application

The loan is approved

Signing of the mortgage and loan documents

Settlement of the loan transaction

Ms Dewar's use of the $68,338.42

Ms Dewar falls into arrears

GE Money sells home loan portfolio

Ms Dewar’s request for hardship assistance declined and she complains to Credit Ombudsman Service

Ms Dewar notifies Mr Ollier of potential claim

Ms Dewar's claims and disposition

Contract and negligence claims

What duties were owed by the defendants to Ms Dewar?

Did Mr Ollier and Andtrac breach the duties owed to Ms Dewar?

Did the breach of duty cause Ms Dewar to suffer loss?

Claim for equitable compensation for breach of fiduciary duty or assistance in breach of a fiduciary duty

Misleading or deceptive conduct claim

Unconscionable conduct claim at general law

Unconscionable conduct claim under the ASIC Act

Ms Dewar’s reliance on the Corporations Act 2001 (Cth)

Issues raised by the defendants

Did Ms Dewar cause or contribute to her own loss?

Did Ms Dewar fail to mitigate her loss?

The quantum of Ms Dewar's loss

The application of the Limitation Act

TOTTLE J:

Summary

1. On 14 February 2008 the plaintiff, Ms Corinna Dewar, granted a first registered mortgage over 17 Mint Circuit, Banksia Grove, to GEL Custodians Pty Ltd to secure a loan made by it to her of $245,000.[1]

   [1] GEL was part of a group of companies that traded under the name 'GE Money'.

2. Ms Dewar alleges that the defendants, who are finance brokers, are liable to compensate her for losses she alleges flow from accepting the loan from GEL and mortgaging 17 Mint Circuit to secure the repayment of it.  Put shortly, she alleges she did not need to borrow $245,000 and that she could not afford the monthly repayments required to service the loan.  Ms Dewar alleges that the defendants are liable to her for damages for:  

   (a)breach of contract;

   (b)negligence;

   (c)misleading or deceptive conduct in contravention of the Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act);

   (d)unconscionable conduct contrary to the general law and the ASIC Act; and,

   (e)breach of fiduciary duties and knowingly assisting in a dishonest breach of fiduciary duties.

3. The loan was made as a result of an application for a 'Fastdoc70' loan processed by a mortgage originator, Wholesale Funds Australia Pty Ltd.  I explain the criteria for the making of a Fastdoc70 application loan later in these reasons.  For present purposes it suffices to say it was a loan application commonly referred to as a 'no docs' loan application.  A 'no docs' loan application did not require the applicant to provide supporting evidence of income.  In place of verification of an applicant's income by documents an applicant was required to 'self-certify' that he or she was able to afford the repayments required to service the loan.

4. Ms Dewar used the loan funds she obtained from GEL to pay off an existing mortgage to Keystart Loans Ltd and to acquire a 30% interest in 17 Mint Circuit, then owned by the State Housing Commission (the Commission).  After the payment of fees, a balance of $68,338 was paid into Ms Dewar's bank account. This amount was described as an 'equity release'.  One of Ms Dewar's principal complaints is that it was not explained to her that the 'equity release' funds were loan funds that reduced her equity in 17 Mint Circuit.

5. Mr Sebastien Ollier, the first defendant, was primarily responsible for arranging the loan.  He was assisted by Mr Andrew Walker, the third defendant, who carried on a finance broking business through his company, Andtrac Pty Ltd, the fourth defendant.  At Mr Ollier's request Ms Dewar signed an agreement which named Andtrac as the finance broker and which recited that Andtrac agreed to arrange a loan for her.  This agreement was entitled 'Finance Broking Agreement and Appointment to Act' (Finance Broking Agreement).  The second defendant, Atnam Pty Ltd, another company owned by Mr Walker, played no role in obtaining the loan for Ms Dewar.

6. The conclusions I have reached are as follows:

   (a)Mr Ollier and Andtrac breached the contractual and tortious duties they owed to Ms Dewar to render finance broking services with reasonable skill, care and diligence and those breaches caused her loss.

   (b)Ms Dewar contributed to the loss suffered by her and on that basis I would have reduced any damages awarded in her favour by 60%.

   (c)Ms Dewar failed to mitigate the loss she suffered and this failure limits the damages that might have otherwise been awarded in her favour.

   (d)Ms Dewar's action was commenced after the limitation period applicable to her contractual and tortious claims had expired and thus her action must be dismissed.

7. Ms Dewar was represented by solicitors in the early stages of this litigation but thereafter she represented herself.[2]  As might be expected, self-representation presented challenges for Ms Dewar.

   [2] Ms Dewar received assistance on a pro bono basis from Mr David Garnsworthy in the trial preparation stages of the action.

The issues

1. The pleaded issues may be summarised as follows:

   (a)What was said at the first meeting between Ms Dewar and Mr Ollier held on 2 April 2007?[3] 

   [3] Re-substituted statement of claim pars 16, 17 and 18.

   (b)In particular, at the April 2007 meeting did Mr Ollier make a number of representations to Ms Dewar about the steps he would take to obtain a loan, the repayments that Ms Dewar would have to make, the basis upon which he was remunerated, and the suitability of the loan he would find for her (the Representations)?[4]

   [4] Re-substituted statement of claim par 17.

   (c)In reliance on the Representations did Ms Dewar enter into an agreement with one or more of the defendants and what were the terms of any such agreement?[5]

   [5] Re-substituted statement of claim pars 19 - 21.

   (d)Did all or any of the defendants owe a duty to take reasonable skill, care and diligence in acting on Ms Dewar's behalf in arranging finance to achieve Ms Dewar's purpose of obtaining an affordable mortgage to enable her to purchase the Commission's interest in 17 Mint Circuit and have peace of mind?[6]

   [6] Re-substituted statement of claim par 23.

   (e)Did the defendants owe Ms Dewar any of the following duties:

   (i)a duty to act in good faith;

   (ii)a duty to act in the best interests of Ms Dewar;

   (iii)a duty not to act in his or its own interests in conflict with Ms Dewar's interests;

   (iv)a duty to be honest and truthful with Ms Dewar;

   (v)a duty to represent Ms Dewar's circumstances accurately to any prospective lender?[7]

   [7] Re-substituted statement of claim pars 24 - 25.

   (f)At a meeting on 20 November 2007 did Mr Ollier present Ms Dewar with an incomplete loan application to Wholesale Funds and obtain her signature as required by the application and did he refuse to accept documents verifying her income?[8] 

   [8] Re-substituted statement of claim par 26.

   (g)Did Ms Dewar sign the Wholesale Funds loan application in reliance on the Representations?

   (h)Did Mr Ollier include information that he knew or ought to have known was false in the loan application to Wholesale Funds?[9]

   [9] Re-substituted statement of claim par 28.

   (i)Did Mr Ollier include information in the Wholesale Funds loan application about Ms Dewar's work history, her purpose in seeking a loan and a previous application to RAMS Home Loans that was incorrect?[10]

   [10] Re-substituted statement of claim par 29.

   (j)Did Mr Walker sign the Wholesale Funds loan application recording that he had interviewed Ms Dewar on 20 November 2007 when he had not done so?[11]

   [11] Re-substituted statement of claim par 30.

   (k)Did Mr Ollier know that if Ms Dewar's true financial position had been disclosed to GEL any application for finance would have been refused?[12]

   [12] Re-substituted statement of claim par 32.

   (l)At a meeting held on 8 January 2008 did Mr Ollier and Mr Walker put pressure on Ms Dewar to execute the GEL loan contract and mortgage documents without giving her the opportunity to consider those documents and obtain legal advice?[13]

   [13] Re-substituted statement of claim par 35.

   (m)Did Mr Ollier's conduct constitute a breach of the duties allegedly owed by him?[14]

   [14] Re-substituted statement of claim par 39 and 47.

   (n)Were the Representations allegedly made by Mr Ollier false and misleading and by making them did he engage in misleading or deceptive conduct in the provision of financial services in breach of s 12DA of the ASIC Act?[15]

   [15] Re-substituted statement of claim par 41 and 42.

   (o)In her dealings with Mr Ollier was Ms Dewar in a position of special disadvantage?[16]  

   (p)Did Mr Ollier know of Ms Dewar's alleged special disadvantage and did he take advantage of Ms Dewar's position with the result that his conduct was unconscionable?[17]

   (q)Did Ms Dewar suffer compensable loss and damage as a result of the matters of which she complains?[18]

   (r)If all or any of the defendants breached any duties owed by them to Ms Dewar, did any such breaches cause the loss for which she claims?

   (s)Are Atnam and Andtrac liable for the loss and damage suffered by Ms Dewar?[19]

   (t)Did Mr Walker and Andtrac dishonestly assist Mr Ollier and Atnam in unconscionable conduct and breaches of fiduciary duty and, if so, are they liable to compensate Ms Dewar for her loss?[20]

   (u)Was Ms Dewar contributorily negligent?[21]

   (v)Did Ms Dewar fail to mitigate any loss suffered by her?[22]

   (w)Are the defendants concurrent wrongdoers and should any liability to Ms Dewar be apportioned between them?[23]

   (x)Are Ms Dewar's claims statute barred?[24]

   [16] Re-substituted statement of claim par 43.

   [17] Re-substituted statement of claim par 45.

   [18] Re-substituted statement of claim par 50.

   [19] Re-substituted statement of claim pars 46, 48, 51, 52, 53.

   [20] Re-substituted statement of claim pars 54 and 55.

   [21] First defendant's defence pars 57 – 64; Second, Third and Fourth defendant's Defence pars 89 - 96.

   [22] First defendant's defence par 65; Second, Third and Fourth defendant's Defence par 97.

   [23] First defendant's defence par 66; Second, Third and Fourth defendant's Defence pars 99 - 101.

   [24] First defendant's defence pars 67 - 72; Second, Third and Fourth defendant's Defence pars 102 - 105.

2. In the course of setting out my factual findings I will refer to the factual allegations made by Ms Dewar in greater detail.

The witnesses

1. Before setting out my views on credit of the witnesses and the reliability of their evidence I make these overarching observations.  Some nine to 10 years elapsed between the events in dispute and the trial.  I do not accept that any of the witnesses in this case had an independent recollection of their conduct in 2007 and 2008.  At best they have a hazy recollection of what took place and why they acted as they did.  As McLelland CJ in Equity observed in Watson v Foxman:[25]

   [H]uman memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.[26]

   [25] Watson v Foxman (1995) 49 NSWLR 315.

   [26] Watson v Foxman (318 - 319).

2. Perhaps understandably given the elapse of time and what was at stake for each of them, in my assessment Ms Dewar, Mr Ollier and Mr Walker were all prone to reconstruct the relevant events in a way that accorded with their perception of their self-interest in this litigation.  These considerations, together with the matters to which I refer when considering the evidence of each of them separately, mean that I have reservations about the reliability of the evidence of each of Ms Dewar, Mr Ollier and Mr Walker.  For that reason, in making factual findings I have had regard wherever possible to the objective factual circumstances, the inherent probabilities as to what occurred and the inferences that may be drawn from contemporaneous documents. 

3. I find that when Ms Dewar gave oral evidence, both in evidence-in-chief and in cross-examination, she did her best to give truthful and accurate evidence.  My impression of Ms Dewar was that she was an intelligent person, albeit that in the context of the events with which this case is concerned she made decisions which were unwise.

4. In her witness statement, which formed the substance of Ms Dewar's evidence-in-chief, Ms Dewar included a number of statements that she accepted were incorrect.  I am not persuaded that Ms Dewar set out to mislead the court.  As indicated, my impression is that she had supplemented her poor recollection of events with a reconstruction which exaggerated what she perceived as her vulnerability to exploitation.  In my assessment, Ms Dewar's tendency to exaggerate reflected her conviction that she had been wronged by Mr Ollier. 

5. My reservations about the reliability of Ms Dewar's evidence are such that I am not prepared to rely on it unless it is corroborated by other reliable evidence.  My reasons are as follows.  First, as I have said, Ms Dewar admitted that her account of some of the relevant events given in her witness statement was inaccurate.  Secondly, much of her evidence is reconstruction to which, in some respects, Mr Pavy contributed.  Thirdly, her recollection of events is not supported by the contemporaneous documents.  Fourthly, again as I have already said, her recollection of events has been coloured by her conviction that she was wronged by Mr Ollier.  A striking example of how Ms Dewar has looked at events through the prism of her conviction that she was wronged was her evidence, contained in her witness statement, to the effect that most of the $68,338 that was deposited into her bank account following receipt of the loan from GEL was used to meet mortgage repayments.  In fact, the bank statements show that only three mortgage repayments amounting to a total of approximately $6,000 were made out of the $68,338.  Ms Dewar accepted that her evidence about the use of the $68,338 was 'incorrect and untrue'.[27]  Fifthly, Ms Dewar gave inconsistent accounts of the extent to which injuries prevented her from working, thus contributing to her inability to meet her mortgage repayments.

   [27] ts 265.

1. Mr Pavy and Ms Dewar have known each other as friends for 28 years.  They had lived in the same house.  My impression was that Mr Pavy was concerned to assist Ms Dewar and this influenced his evidence.  Additionally, and understandably given the passage of time, his recollection of events was poor.  His evidence-in-chief consisted of a short statutory declaration in which he stated, in effect, that Ms Dewar met Mr Ollier for the first time in September 2007.  The account of events given by Mr Pavy in the statutory declaration implied that shortly after the first meeting Ms Dewar was required to sign mortgage documents without the benefit of legal advice.[28]  Mr Pavy did not mention the meeting that he and Ms Dewar said took place on 8 January 2008 and about which he gave oral evidence in his statutory declaration.  This was the meeting at which they said Ms Dewar signed the mortgage document and at which Mr Ollier had told them there was no time for Ms Dewar to obtain legal advice.  When Mr Pavy gave oral evidence he had difficulty recalling what had occurred at the meetings at which he was present.[29]  For those reasons I find Mr Pavy's evidence to be unreliable.

   [28] Exhibit P4.

   [29] ts 414.

2. Mr Gavin Libotte, Ms Dewar's son, gave evidence about a conversation he says he overheard between Ms Dewar and Mr Ollier.  He was about 19 years of age in 2007.  Mr Libotte's evidence is difficult to reconcile with the chronology established by other evidence.  Mr Libotte was giving evidence of events that had taken place over 10 years ago and he was only asked to make a statement a few months before the hearing.[30]  My impression is that Mr Libotte's evidence was a reconstruction based on fragmented recollection of different conversations or events.  I do not find Mr Libotte's evidence reliable. 

   [30] ts 372.

3. Ms Dewar's other three children, Ms Natalie Dewar, Mr Michael Dewar and Ms Emma Dewar, gave evidence on Ms Dewar's behalf in relation to the difficulties she had experienced as a result of GEL taking possession of and selling 17 Mint Circuit.  I have no reason to doubt they gave their evidence truthfully.

4. Mr Ollier responded to questions put to him in a calm and measured way.  My impression is that he set out to assist Ms Dewar by obtaining a loan for her and that he did his best to achieve that.  I do not accept that he took advantage of Ms Dewar or that his sole interest lay in obtaining commissions.  As stated earlier, my assessment is that Mr Ollier had a hazy recollection of some of his meetings and communications with Ms Dewar but that, in the main, his evidence was a reconstruction based on a combination of some recollection, contemporaneous notes and his usual practice.  I consider that Mr Ollier's evidence about the order of events and his evidence about the topics covered in his discussions with Ms Dewar was generally reliable as it was based on contemporaneous notes made by him and accorded with the contemporaneous documents.  As explained later Mr Ollier was, however, unable to provide a satisfactory explanation for some of the statements made by him in a document entitled Mortgage Loan Summary which accompanied the loan application to Wholesale Funds.  I am not prepared to rely on his evidence on the subject of those statements.

5. Mr Walker answered questions put to him in cross-examination in a straight forward manner.  His evidence concerning his contact with Ms Dewar was limited and I accept his account in preference to that of Ms Dewar, largely because his account was consistent with the documents.  Mr Walker gave more extensive evidence about his working relationship with Mr Ollier.  I regard this evidence with some caution because the impression I gained, especially from the statements that constituted his evidence-in-chief, was that Mr Walker was anxious to establish the legal conclusion that Mr Ollier was not Andtrac's agent rather than to confine himself to a statement of the facts as he could recall them.

6. A number of other witnesses were called on behalf of Mr Ollier.  These were Mr Brian McClure, a collections officer of Keystart; Mr Robert Layh, the credit consultant who considered Ms Dewar's mortgage loan application on behalf of Wholesale Funds; Mr James Murphy, who gave evidence of the policies and procedures in place for the approval of loans by GE Money in the period between November 2007 and February 2008; and Dr Pasquale Franzese, who gave opinion evidence in relation to the suitability of the loan made to Ms Dewar for her purposes and related issues.  The credit of these witnesses and the reliability of their evidence was not in issue.  Witness statements from two other witnesses, Mr Andrew Pepper and Ms Felicity Cornforth, were tendered by consent.  Their evidence dealt with the availability of records following the acquisition of the GE Money business by the Pepper Group Ltd and was also not in dispute.

The facts

1. I make the following factual findings.

Ms Dewar's personal and work background

1. In 2007 Ms Dewar was a single woman with four children aged between 11 and 19.  She was 47 years old.

2. Ms Dewar completed her secondary education in year 10.  She went to work as a 'dictaphone' typist for RAC Insurance.  In addition to typing, Ms Dewar said that her duties included attending a service counter and assisting customers with completing claim forms. 

3. After working for RAC Insurance for a number of years, Ms Dewar studied graphic design at the Commission of Technical and Further Education (TAFE) and thereafter worked as a graphic designer.

4. In 1991 Ms Dewar studied on a part-time basis for a Certificate of Business Studies.  This was a TAFE course which involved studying Accounting, Economics and other business related subjects.  In 1992 she undertook further part time studies at TAFE for the purposes of gaining an Associate Diploma in Business Office and Secretarial Studies.  As part of this course she again studied accounting.  It was not clear from the evidence whether Ms Dewar completed the course successfully but, in any event, her attendance on these courses did not lead to any employment in accounting or any similar occupation. 

5. When her children were young Ms Dewar had a number of casual jobs, but the details are of no present relevance.

6. At various times Ms Dewar gave consideration to starting her own business.  In October 2002 Ms Dewar obtained an Australian Business Registration Number (ABN) for a business called Colt 45 Design that she hoped to establish but nothing came of this.  In March 2003 a friend encouraged her to start a different business under the name KISS 23 and, as a consequence, the ABN registration was changed to KISS 23.

7. At some stage Ms Dewar undertook TAFE courses in land law and criminal law.  Again it was not clear from the evidence exactly when Ms Dewar undertook these courses but it was before she applied for a loan in November 2007.[31]

   [31] ts 94, 304 - 305.

8. As a result of tiling work completed by Ms Dewar at her own home, she acquired some skill as a tiler.  Building on those skills, Ms Dewar attended further TAFE courses to obtain the skills and qualifications required to trade as a tiler.

9. In late 2005 or early 2006 Ms Dewar completed some tiling on a property in Walcott Street, Coolbinia.  Her brother also lived at an address in Walcott Street.  Not long after completing the tiling work in the Walcott Street property, Ms Dewar decided that she would start a tiling business.  In 2006 she changed her ABN to the name ITILE, the name was subsequently changed to ITILE4U. 

10. A profit and loss account for the tiling business for the financial year ending 30 June 2007 recorded that Ms Dewar derived a net profit of $5,728 from revenue of $42,393.

11. Ms Dewar's income was supplemented by a family payment allowance paid by Centrelink and some child support from her former husband.

12. In about 2010 Ms Dewar undertook a full-time 'Diploma in Legal Studies' at TAFE.  She studied criminal law, contract law, tort law and other legal subjects.  In 2010 or 2011 Ms Dewar worked as a telephone operator at Legal Aid in Perth.

13. As part of her unconscionable conduct case, Ms Dewar pleaded that she suffered from dyslexia.  In her witness statement she said that she told Mr Ollier that she had dyslexia at their first meeting.  In cross‑examination Ms Dewar said that she thought whether she told Mr Ollier that she had dyslexia was quite trivial and she did not think that dyslexia would affect her.[32]  Ms Dewar said that she had not been diagnosed with dyslexia.  I infer Ms Dewar referred to herself as being dyslexic because, as she put it, '[her] maths isn't good'.[33]  Although in cross‑examination Ms Dewar was dismissive of the significance of the suggestion that she suffered from dyslexia, the fact that it featured in her pleaded case reflected her tendency to exaggerate matters to support her claims.

17 Mint Circuit, Banksia Grove

[32] ts 147.2.

[33] ts 147.

1. In 1995 Ms Dewar and the Commission acquired the land at 17 Mint Circuit as tenants in common.  Ms Dewar held a 70% interest and the Commission held a 30% interest.  Ms Dewar arranged for a house to be built on the land.  Ms Dewar financed the acquisition of her interest in the land and the construction of the house with a loan from Keystart, to whom she granted a first registered mortgage over her interest in the land.  Ms Dewar and her children lived at 17 Mint Circuit from the time the house was built until early 2006.

2. In early 2006 Ms Dewar moved out of 17 Mint Circuit with her three youngest children.  Initially, she moved into her brother's house in Walcott Street.  The reason for the move was that Ms Dewar wanted her children to attend schools in Mount Lawley which she considered would provide them with a better education. 

3. As a result of her tiling work, Ms Dewar had become acquainted with the new owner of the Walcott Street property on which she had worked and she took a tenancy of that property and moved in with her three youngest children.  The house in Walcott Street has been Ms Dewar's primary residence since 2006, though there have been times when she has lived on a temporary basis either at 17 Mint Circuit or at her brother's house in Mount Lawley.

4. Mr Libotte continued to live in 17 Mint Circuit after Ms Dewar and her younger children had moved to Walcott Street.  Mr Libotte lived at 17 Mint Circuit with friends.  He and his friends did not pay Ms Dewar any rent.  Ms Dewar explained that this was because his employment was intermittent.[34]

Mr Ollier, Mr Walker, Andtrac and Atnam

[34] ts 60.

1. Ms Dewar pleads that Mr Ollier acted as agent for Mr Walker, Andtrac and Atnam.[35]

   [35] Re-substituted statement of claim par 2(b).

2. Between October 2004 and October 2006 Mr Ollier was employed by the home mortgage lender known as RAMS Home Loans (RAMS) as a mortgage broker.  Whilst so employed, Mr Ollier completed various training courses in mortgage broking.  He became an accredited mortgage consultant with the Mortgage and Finance Association of Australia in March 2005.  In early 2007 Mr Ollier took steps to establish his own mortgage broking business. 

3. On 22 October 2007 Mr Ollier was granted a licence to conduct business as a finance broker under the Finance Brokers Control Act 1975 (WA).

4. Mr Walker has been a mortgage broker for over 15 years.  He is a director of Atnam Pty Ltd, the second defendant, and Andtrac Pty Ltd, the fourth defendant. 

5. Mr Walker carried on his mortgage broking business through Andtrac.  Andtrac subleased an office in Osborne Park.

6. Andtrac submitted loan applications on behalf of its clients to an 'aggregator', Xinc Financial Services Pty Ltd.  To facilitate this, on 1 May 2006 Andtrac had entered into a Sub‑Introducer Agreement with Willard King Organisation (1978) Pty Ltd under which Andtrac was the sub‑introducer and Willard King the introducer.  In support of her argument that Mr Ollier was Andtrac's agent, Ms Dewar drew attention to the fact that the Sub‑Introducer Agreement contained a term to the effect that any person who provided services 'for or in relation to' the Sub-Introducer Agreement was defined for the purpose of the agreement as a 'Sub-Introducer's Agent' under cl 10.1.[36]  Willard King was replaced as the introducer by a company with the name ACN 117688356 Pty Ltd.  This was achieved by a deed of novation. 

   [36] Exhibit D1, 812.

7. Mr Walker's evidence was to the effect that he (by which I understood him to mean Andtrac) and Mr Ollier each had individual sub‑introducer agreements with ACN 117688356 Pty Ltd.  He described Mr Ollier and Andtrac as separate and independent sub-introducers.[37]

   [37] Exhibit 2D2 pars 37 - 67.

8. Mr Walker and Mr Ollier were 'Self Generating Leads Brokers'.  This meant that they solicited potential clients for their mortgage broking businesses as opposed to clients being referred to them by an aggregator.  On occasions, Mr Walker and Mr Ollier purchased 'leads' from advertising agencies that had been generated by enquiries from members of the public.

9. Mr Ollier conducted his mortgage broking business from Andtrac's office.  In his witness statement at pars 29 and 30 he described the arrangement with Mr Walker and Andtrac in the following terms:[38]

   [38] Exhibit D8.

   (a)Andrew and I shared his Osborne Park office and stationery;

   (b)I paid no rent and did not pay for any overheads for the office or the facilities (such a printer and fax machine);

   (c)I gave Andrew all of my draft loan applications for him to review;

   (d)Andrew mentored me and provided advice to me on mortgage broking;

   (e)        I did not receive a wage or salary from Andrew;

   (f)all commissions (both upfront and trail commissions) earned from the loans that I prepared in draft were paid to Andrew (or his companies); and

   (g)I received a share of those commissions (both upfront and trail commissions) but Andrew kept a share of them in exchange for mentoring me and providing office facilities.

   At some point in time while working with Andrew, I was issued with a business card by Xlnc.  I do not recall when I was issued with the business card.

10. Mr Walker corroborated Mr Ollier's evidence about the payment of commissions.  His evidence in this respect was to the effect that commissions from any loan Mr Ollier wrote flowed from the Aggregator to the Introducer to Andtrac's bank account.  Andtrac deducted a percentage out of the trail commissions and paid the remainder into Mr Ollier's bank account.[39]

    [39] Exhibit 2D2 pars 18 - 19.

11. The business card to which Mr Ollier referred had the logo Ⓧinc and Mr Ollier's name on it and described him as a 'Senior Finance Broker' and set out his contact details.  Andtrac's name appeared under Mr Ollier's contact details with the words 'Andtrac Pty Ltd trading as Xinc Perth, an independently owned and operated business' and the address of the Osborne Park office was given.[40]  It is not disputed that Mr Ollier gave this business card to Ms Dewar at their first meeting.

    [40] Exhibit D1, 5.

12. Mr Ollier and Mr Walker had different recollections about whether the business arrangement between them had been reduced to writing.  Mr Ollier recalled that an agreement between them had been prepared and signed by them both.  He was unable to find a copy of the agreement.  Mr Walker said Mr Ollier was mistaken in his recollection that there was a written agreement and said that Mr Ollier was referring to a sub‑introducer agreement that he recalls that Mr Ollier had signed with ACN 117688356 Pty Ltd as opposed to an agreement between them.

13. Mr Ollier maintained his own professional indemnity insurance.[41]  When cross‑examined by Andtrac's counsel he said, in effect, that Ms Dewar was his client and he was operating as an independent mortgage broker.[42] 

    [41] ts 644.5.

    [42] ts 644.

14. Mr Walker's evidence was that he had not granted Mr Ollier any authority to act as agent for him personally or for Andtrac.  In cross‑examination Andtrac's counsel put to Mr Ollier that neither Mr Walker nor Andtrac had granted Mr Ollier authority to provide financial services on their behalf.  Mr Ollier's response was that he did not know the answer to that question.[43]

    [43] ts 645.

15. Mr Ollier's evidence about his usual practice in relation to the preparation of finance broking agreements with clients cast his relationship with Mr Walker and Andtrac in a different light. 

16. Mr Ollier said that at all relevant times he used a template Finance Broking Agreement and that the first six fields of Part 1 of the document were pre-completed.  I describe the Finance Broking Agreement and its component parts in more detail later in these reasons.  The first six fields of Part 1 recorded the identity of the broker as Andtrac, and its address and licence number was given.  Mr Walker was identified as the principal.

17. It is common ground that Mr Walker was a more experienced finance broker than Mr Ollier and that he assisted Mr Ollier and acted as a mentor to him.  It is also common ground that the application made on Ms Dewar's behalf that led to the loan being made to her was made by Mr Walker using Andtrac's accreditation as an Xinc sub-introducer.

18. I find that in November 2007 Mr Ollier was authorised to enter into finance broking agreements with members of the public on behalf of Andtrac.  I make this finding for the following reasons taken in combination.

    (a)First, by arranging for his clients to enter agreements with Andtrac Mr Ollier facilitated his commission sharing arrangement with Andtrac.  I infer that to achieve the flow of commissions for loans arranged by Mr Ollier to Andtrac it was necessary for the finance broking agreements to be between Andtrac and the client and conformably with those agreements, for Andtrac to submit the loan applications to the aggregator.  If this procedure had not been followed the commissions would have flowed directly to Mr Ollier.

    (b)Secondly, I infer that it is most unlikely that Mr Ollier would have used the finance broking agreement template which nominated Andtrac as the broker if he did not consider that Andtrac was the broker and that he had authority to enter those agreements on Andtrac's behalf.

    (c)Thirdly, I infer from the fact that Mr Walker knew that Andtrac received commissions in respect of loan applications made by Mr Ollier on behalf of his clients (that is Mr Ollier's clients) that he also knew both that those loan applications were made under Andtrac's accreditation and that Mr Ollier had entered into finance broking agreements with his clients on Andtrac's behalf.

    (d)Fourthly, the existence of such authority is generally consistent with Mr Ollier's description of his working relationship with Mr Walker.  It is significant that Mr Ollier prepared loan applications in draft for Andtrac to submit.

19. As noted in the introduction I find as a fact that Atnam played no part in the events with which this case is concerned.

Events leading to Ms Dewar's first contact with Mr Ollier

Ms Dewar's indebtedness to Keystart

1. In late 2006 Ms Dewar was in arrears with her mortgage payments to Keystart.  The monthly payments were approximately $500 per month.  Ms Dewar had paid only part of the September 2006 payment and did not make the payments that fell due in October, November and December 2006.

2. Mr McClure was employed in Keystart's 'Arrears Team' and in February 2007 he contacted Ms Dewar and had a discussion with her about her financial circumstances and what she proposed to do to bring the mortgage payments up to date.  Mr McClure made a note of his conversation with Ms Dewar that read as follows: [44]

   DNR. PHD MRS. SHE SAYS SHE HAS BEEN SICK 9SHE HAS THE FLU). SHE TALKING ROUND IN CIRCLES. SHE SAYS HER SITN IS THIS: - SHE HAS 4 KIDS - 17 (HE LIVES IN THE SEC PROP), 13, 12, 11. SHE MOVED TO COOLBINIA AS SHE WAS NOT AHPPY WITHTHE STANDARD OF EDUCTION IN JOONDALUP AND ALSO THE VIOLENCE. HER ELDES SON HAS JUST GOT A JOB IN THE JOONDALUP AREA - HE WAS NOT PAYING H IS MUM ANYTHING BUT NOW HE IS WORKING SHE THINKS HE SHOULD (ALTHOUGH IT SOUNDED LIKE THAT THOUGHT JUST OCCURRED TO HER AS WE WERE TALKING). SHE SAYS SHE DOES TILING - SHE WORKS ABOUT 15 HOURS A WEEK THEN SHE SAYS SHE SOMETION ES WKS FOR 4 DAYS(??). SHE SAYS HER INCOME IS - WAGES $300PW, FPA $464PFN, M AINT $350PM, SHE PAYS $250PW IN RENT ON THE COOLBINIA PROP AND GETS NO RENT ASSIST. THUS INCOME IS $2478PM. ONLY OTEHR DEBTS ARE SHIRE - $200 AT $30PW A ND WTER CORP $250-$300 AT $25PW THUS DSR IS 71% - UNSUSTAINABLE - EVEN WITH OUT THE SHIRE AND WATER WILL BE 63% - STILL UNSUSTAINABLE. **I ASKED HER IF SHE HAD THOUGHT ABOUT SURRENDERING THE PROP TO US – SHE SAYS NO. TOLD HER THIS LOAN NEEDS TO BE BROUGHT UTD. SHE IS TO GO TO HER BNK AND FIND OUT WHAT IS THERE AND PH ME BACK. D28/2…BMcCLURE.

   [44] Exhibit D1, 258.

1. In Ms Dewar's evidence she confirmed that Mr McClure's note accurately recorded her sources of income in February 2007.  On this basis I find that in February 2007 Ms Dewar's monthly income was approximately $2,478 and her monthly housing and related expenses were $1,200.

2. There is no evidence to suggest that Mr Ollier knew that Ms Dewar had experienced difficulties with keeping her payments to Keystart up to date.  I find he did not know of these difficulties.  In support of her loan application to Wholesale Funds, Ms Dewar was required to provide statements in relation to the Keystart loan for the preceding six months showing that she was not in arrears.  By the time of the application she was able to provide those statements.

Ms Dewar's telephone enquiry

1. In March 2007 Ms Dewar made an enquiry by telephone about the possibility of refinancing her Keystart loan.  It appears that the enquiry was directed to a business known as 'Eleven Marketing Leads Distribution System' and a record of the enquiry was made which, amongst other things, recorded the following: [45]

   [45] Exhibit D1, 295.

Occupation:	Self- Employment			Employment status:	SELF EMPLOYED - ABN
Employment/ ABN Duration	Years			Salary:	50K - 99K
Reason to access equity: REFINANCE FOR SAVINGS AND CAR
Looking for a property?		YES
Access to a deposit:		YES
Property search price range:		UP TO 500K
Eligible for the first home owners grant?			NO
CORINNA IS LOOKING FOR SAVINGS ON HER MORTGAGE WITH THE FIRM KEYSTART. SHE WOULD LIKE TO PAY IT OFF A LOT SOONER. SHE IS ALSO LOOKING TO BUY A WORK CAR TO THE VALUE OF 16K AND IS CONSIDERING PURCHASING A BIGGER HOME TO THE VALUE OF 500K AND USING EQUITY IN HER EXISTING HOME AS A DEPOSIT.

1. Caution is required before drawing inferences from the Eleven Marketing lead as to what was actually said by Ms Dewar.  It is possible that the information in the lead was given in answer to leading questions that may have had the effect of distorting or putting a gloss on Ms Dewar's responses.  Taking those matters into account, I think it likely that Ms Dewar made statements to the person from Eleven Marketing to whom she spoke to the following effect:

   (a)She was self-employed.

   (b)She earned over $50,000 per annum.

   (c)She wished to refinance her existing mortgage with Keystart.

   (d)17 Mint Circuit was worth approximately $280,000 and she owed $64,000.

   (e)She wanted to refinance so that she could pay off the amount she owed on her house sooner.

   (f)She was interested in borrowing funds to buy a car for work purposes.

2. Whilst it is possible that Ms Dewar may have said something in the course of the telephone interview about wishing to buy another property and using her equity in 17 Mint Circuit as a deposit, I am not persuaded that this was step that Ms Dewar was contemplating in early 2007.  The possibility of buying another property was not raised in Ms Dewar's discussions with Mr Ollier.  Further, it seems to me that there was some tension between Ms Dewar's stated aim of paying off her mortgage sooner and borrowing funds to purchase a car or fund the deposit on another property, but I bear in mind that, on the evidence, this was Ms Dewar's first enquiry about the possibility of refinancing.  It is entirely possible that she may have had different and, to some extent, conflicting ideas in mind at that stage. 

3. As a result of Ms Dewar's enquiry a meeting with a mortgage broker was arranged.  The meeting was to take place at Ms Dewar's home at 8.00 pm on 29 March 2007.

4. In mortgage broking terms, Ms Dewar's enquiry as recorded by Eleven Marketing was a 'lead'.  Mr Ollier purchased the lead generated by Ms Dewar's enquiry for $120.  Mr Ollier spoke to Ms Dewar by telephone.  The meeting originally arranged for 29 March 2007 was rearranged for 2 April 2007. 

5. In her witness statement Ms Dewar said that she and Mr Pavy met Mr Ollier when he was 'door-knocking' in the area,[46] though when she gave her evidence she accepted that her meeting with Mr Ollier had been arranged over the telephone.  She said that the suggestion that Mr Ollier had been door-knocking was made to her by Mr Pavy.[47]

2 April 2007 meeting

Ms Dewar's pleaded case and her evidence

[46] Exhibit P2 par A1.3; ts 125.

[47] ts 125.

1. Ms Dewar pleaded that she told Mr Ollier at the April meeting that she wanted to purchase a further 10% interest in 17 Mint Circuit, but if she could purchase the Commission's 30% interest without increasing her repayments above $350 per week, she would consider purchasing the 30% interest.  She pleaded that she gave Mr Ollier the information about her personal and work history and financial position. 

2. In Ms Dewar's witness statement she stated that she told Mr Ollier that:[48]

   [48] Exhibit P2, 3 - 5.

   (a)she wanted to stay with her current lender, Keystart;

   (b)she wanted to approach Keystart for a further 10% interest in the property;

   (c) if taking a 30% interest resulted in repayments being no more than $350 per week she would consider that instead;

   (d)she did not want him to approach GE Money for the refinance as he suggested but wanted to stay with her current lender as she was happy with them;

   (e) she had been a 'stay-at-home-mum' for 21 years and as she could not afford to tile her home, she learnt the trade and started as a sole trader in the wall and floor tiling business in 2006;

   (f)she was paying a mortgage of $100 and rent of $250 per week;

   (g)she did not receive any rent from the Mint Circuit property;

   (h)she was doing renovations to the Mint Circuit property;

   (i)she was 'illiterate' in financial matters and accounting as she had 'dyslexia';

   (j)she had been on social security for 21 years while raising the children;

   (k)she received Centrelink payments because although she was a sole trader she did not receive enough income;

   (l)she received Family Payment for three children;

   (m)she had no savings;

   (n)she had a profit and loss statement ready to use 'as requested by Keystart in 08/06/07';[49] and

   (o)she had her tax return available for 2007 but Mr Ollier chose not to take it.

   [49] Exhibit P2 par A4.1(e).

3. Ms Dewar's oral evidence deviated from the evidence contained in her witness statement.  She said she did not have either her profit and loss account for the year ending 30 June 2007 or her tax return for that year until later in the year and she could not have provided them to Mr Ollier at the meeting on 2 April 2007.  She also said that she did not say anything about her savings to Mr Ollier on that occasion.[50] 

   [50] ts 148 - 149.

4. The representations allegedly made by Mr Ollier as pleaded by Ms Dewar were as follows:

   (a)Mr Ollier said he would contact Keystart with respect to financing the purchase of the Commission's 30% share of 17 Mint Circuit.

   (b)The loan repayments for a new loan would not exceed what Ms Dewar was currently paying in rent and loan repayments, being $350 per week, should she proceed with the acquisition of the Commission's 30% share of 17 Mint Circuit.

   (c) Mr Ollier did not receive a commission but was paid wages and she was his first client.

   (d)Mr Ollier said he would find Ms Dewar the most suitable loan for her circumstances.

5. These representations form the basis of Ms Dewar's claim for misleading or deceptive conduct.

6. In her witness statement Ms Dewar's evidence was that Mr Ollier told her that:

   (a)he was from Xinc Perth and received a wage and did not receive a commission;

   (b)she would be his first client if she used his service; and

   (c)he would help her to refinance her Keystart mortgage through GE Money.[51]

   [51] Exhibit P2, 3.

7. Ms Dewar also alleges that Mr Ollier told her that:  she was entitled to an 'equity release' on the new loan; she would be able to be provided with $10,000 in order to undertake renovations on 17 Mint Circuit; and Keystart may not be able to accept the loan application because she needed an investment loan as she was not living at 17 Mint Circuit and that Citibank would be approached if Keystart rejected her application.

8. In cross-examination Ms Dewar accepted that although she had said in her witness statement that Mr Ollier said that he would help her refinance through GE Money, he did not, in fact, mention GE Money to her at that meeting.[52] 

   [52] ts 127.7.

9. Whilst I accept Ms Dewar had a recollection of her first meeting with Mr Ollier, I do not accept her recollection of what was said at the meeting on 2 April 2007 for a number of reasons.  The first reason is the elapse of time between the meeting and when she came to recall the meeting for the purposes of this action.  Given that elapse of time, the recollection professed by Ms Dewar would be exceptional.  Secondly, Ms Dewar's ability to recollect what was said at the meeting is inconsistent with her inability to recall that the meeting had been arranged by telephone and did not come about because Mr Ollier had been 'door-knocking' in the area.  Thirdly, her recollection has been influenced by discussions with Mr Pavy, who suggested that Mr Ollier was door-knocking.  Fourthly, when she gave her oral evidence she admitted that the evidence contained in her witness statement was incorrect in the respects to which I have referred.  Fifthly, as noted earlier, Ms Dewar's account of her interactions with Mr Ollier was influenced by her perception of the importance of factors she considers will assist her case.  This provides an explanation as to why Ms Dewar stated in her witness statement that she had her tax return for the 2007 year available but Mr Ollier chose not to take it when it should have been obvious to Ms Dewar when she prepared her statement that she could not have had her 2007 tax return available to give to Mr Ollier in April 2007.

Mr Libotte's evidence

1. Mr Libotte gave evidence to the effect that he was aware in 'around May 2007' that a mortgage broker was going to help his mother 'buy the house', that is, purchase the 30% of 17 Mint Circuit she did not own.  He recalled seeing Mr Ollier at the Walcott Street property and recalled Ms Dewar saying to Mr Ollier that 'it's your job to make sure I can afford it because I have no idea' and 'I can give you the paperwork to help you' and that Mr Ollier stopped his mother as he did not want any documents.[53]  Mr Libotte said that Mr Ollier had a French accent.  Mr Libotte said that later he asked his mother if she was alright and if things were 'ok'.  He said:

   My mother looked angry still but confirmed that [Mr Ollier] knew what he was doing as he was after all a mortgage broker, it's just that the repayments were going to be around $500 when she knew she would be safe with $350 and he was quite persistent she would be ok since she had a line of upcoming work in tiling which I was helping her with at the time.[54] 

   [53] Exhibit P3 pars 6 and 7.

   [54] Exhibit P3 par 8.

2. As stated earlier, Mr Libotte's evidence cannot be reconciled with the chronology established by other evidence.  The only meeting that took place at Ms Dewar's home in the first half of 2007 was the meeting on 2 April 2007.  As discussed below, the next meeting was not held until August 2007.  I am not satisfied that Mr Libotte's evidence describes anything said or done at the 2 April 2007 meeting.  Ms Dewar's evidence was that Mr Ollier told her at that meeting that the mortgage repayments would be $326 per week.  Ms Dewar's evidence was that she did not know that the repayments on the proposed loan were going to be $500 per week until November 2007.  It is most unlikely that in April or May 2007 Ms Dewar said anything about loan repayments of $500.  Further, Ms Dewar did not mention in her evidence that Mr Libotte was present in the house when she met Mr Ollier.  I do not accept Mr Libotte's evidence as reliable evidence of statements made by Mr Ollier to Ms Dewar.

Mr Ollier's evidence about the April meeting

1. It was Mr Ollier's practice to keep an electronic record of his interactions with clients.  He referred to this record as his 'CRM' notes.[55]  His evidence was that it was his usual practice to make entries in his CRM notes at the time he communicated with, or about, a client or shortly thereafter.  Mr Ollier's CRM notes in relation to Ms Dewar were tendered.

   [55] Extracts from the CRM notes have been reproduced in this judgment exactly as they appear in the original, spelling and typographical errors have not been corrected.

2. Mr Ollier made the following entry in the CRM notes about the arrangement that he had made to meet Ms Dewar on 2 April 2007 and about the meeting itself:

   02/04/2007 she only owns 70% of the house and the rest belong to keystart i told her to get a quote from keystart to organise the refi and then we can set up a no doc with macquarrie cb she is a tyler and would like to buy the whole property and an extra 15k for investment.[56]

   [56] Exhibit D1, 284.

3. Mr Ollier said he had an independent recollection of the meeting.  He recalls meeting Ms Dewar at her house, that she was quite friendly and that he got a 'good impression of her'.  Mr Ollier recalled that he asked Ms Dewar what her goals and objectives were and:

   (a)Ms Dewar told him she was renting the property on Walcott Street; she part-owned 70% of 17 Mint Circuit; a 30% share belonged to Keystart; she also had a loan with the Commission of Housing and Works; she was self-employed as a tiler; she wanted to obtain an extra $15,000 for investment purposes; and, she wanted full ownership of 17 Mint Circuit;

   (b)he said to Ms Dewar that she would have equity in her home if the value was higher than the amount owed on the house and that a lender may consider a loan of 60%, 70% or 80% of the value of the home, which could mean that the lender may be willing to advance more money than Ms Dewar needed to acquire the remaining 30% of 17 Mint Circuit; and

   (c)as Ms Dewar was self-employed, he said words to Ms Dewar to the effect:  'You may be eligible for a low doc or no doc loan.'

4. Although Mr Ollier did not recall whether he mentioned a specific lender, based on a review of his CRM notes he thinks he mentioned Macquarie as a 'no doc' lender. Mr Ollier did not recall whether Ms Dewar asked him to contact Keystart.  Based on the CRM notes he thought that he told Ms Dewar that she should 'get a quote from Keystart to organise the refinance' and that 'we can then can set up a 'no doc' loan with Macquarie'.

5. Mr Ollier said he did not tell Ms Dewar that he would contact Keystart.  He explained that a finance broker was not permitted to deal with Keystart on an existing account not originated by that broker.  Mr Ollier said he did not discuss with Ms Dewar the maximum amount of mortgage repayments she could afford per week.  He specifically denied saying that her loan repayments for a new loan would be $326 or that her repayments would not exceed $350 per week.  Mr Ollier denied that there was any discussion about: whether Ms Dewar received Centrelink payments and how long she had been in receipt of such payments; or whether she received any family payments for her children; or what savings, if any, she had.  Mr Ollier denied telling Ms Dewar that she would be provided with a $10,000 loan in order to undertake renovations to 17 Mint Circuit.

2 April 2007 meeting - findings

1. The most reliable guidance of what was discussed at the 2 April 2007 meeting is the note made by Mr Ollier in his CRM notes read in the context of subsequent notes made by him.  I find that Ms Dewar told Mr Ollier that she held a 70% interest in a house and that Keystart owned the remaining interest which she would like to acquire.  It is likely that in their discussions Ms Dewar and Mr Ollier referred to Keystart as the entity owning the 30% interest rather than to the Commission.  Ms Dewar told Mr Ollier that she was a self-employed tiler.  Mr Ollier told Ms Dewar to obtain a quote from Keystart to establish a value for the property and thus Keystart's 30% interest.  I infer there was a discussion about obtaining a valuation of the property through Keystart because in a note made on 27 April 2007 Mr Ollier recorded, 'she wants to go ahead and is ordering val with keystart for te 30% she doesn't own …'.[57]  Mr Ollier told Ms Dewar that he could arrange a 'no doc' loan with Macquarie Bank.  Some discussion took place between Mr Ollier and Ms Dewar to the effect that Ms Dewar could borrow more than was required to buy out Keystart's interest and Ms Dewar said to Mr Ollier that she would like to borrow an extra $15,000.  Further, as Mr Ollier accepts, he said to Ms Dewar that he would find a suitable loan for her.

   [57] Exhibit D1, 284.

2. There was no discussion of Ms Dewar's income or expenses or her assets and liabilities.  Mr Ollier had formed the view that a 'no docs' application was the way to proceed and no further information was required from Ms Dewar at that stage.

3. Ms Dewar did not ask Mr Ollier to approach Keystart.  I am satisfied that had she done so he would have explained that it was not possible for him to deal with Keystart.  Moreover, as I record later, it was Ms Dewar who contacted Keystart, from which I infer it was unlikely that she had asked Mr Ollier to do so.

4. It is possible that there was some discussion about the amount of the repayments Ms Dewar might be required to make in the event that an application to refinance was successful.  The objective circumstances suggest that it is a topic likely to have been discussed, but I cannot be satisfied that a detailed discussion of the nature described by Ms Dewar took place.

5. There was no discussion about Ms Dewar investing in a share portfolio or using funds obtained by way of 'equity release' to buy another investment property.

Events between 2 April and 13 August 2007

1. In opening her case Ms Dewar said that after meeting Mr Ollier in April 2007 she made some enquiries of her own and did not hear from Mr Ollier for several months, until the end of September or October 2007.[58]  In her witness statement Ms Dewar said 'I hadn't heard from the broker until 02/11/2007'.[59]

   [58] ts 23.7.

   [59] Exhibit P2 par A8.1(a).

2. Based on entries in his CRM notes, Mr Ollier gave evidence of intermittent contact with Ms Dewar between 2 April 2007 and 13 August 2007.  I am satisfied that the CRM notes summarise both Mr Ollier's attempts to make contact with Ms Dewar and the communications that took place between them in that period and, on that basis, make the following findings.

3. On 20 April 2007, Mr Ollier had a telephone conversation with Ms Dewar and during that conversation she said words to the effect that she was 'too busy' and that she had not contacted Keystart but would do so 'soon'.

4. On 27 April 2007, Mr Ollier telephoned Ms Dewar again and during the conversation she told him she wanted to 'go ahead' with arranging the refinancing which had been discussed and she was ordering a valuation with Keystart for the 30% of 17 Mint Circuit that she did not own.  She told Mr Ollier that she owed $70,000 and she wanted to buy out the 30% of 17 Mint Circuit she did not own.  She told Mr Ollier 17 Mint Circuit was worth $400,000.  She also told him that she would like to borrow an extra $10,000.

5. In response, Mr Ollier told Ms Dewar that the loan to value ratio (LVR) would be around 50%, and he could arrange a 'no doc' loan.

6. Mr Ollier tried to contact Ms Dewar again by telephone on 16, 22, 25 and 29 May and on 1 June, 2007, and on each of those occasions he was unable to speak to her.  On the last occasion he 'left a message with someone' for Ms Dewar to contact him. 

7. On 8 June 2007, he called Ms Dewar again and spoke to her and during the conversation she said to him words to the effect that Keystart was asking for a profit and loss statement.  Mr Ollier made the following note in the CRM notes: 'we must [get] a no-doc. Place was valued at 300k they own 30% or 90k'.[60]

   [60] Exhibit D1, 284.

1. On 14 and 19 June 2007, Mr Ollier tried to contact Ms Dewar by telephone.  He was unable to speak to her and left messages for her on both occasions.

2. On or about 26 June 2007, Mr Ollier arranged a meeting with Ms Dewar to take place on 28 June 2007.

3. On 28 June 2007, Mr Ollier spoke to Ms Dewar by telephone and she said she was going to call him the following day to reschedule the meeting.  Mr Ollier spoke to Ms Dewar by telephone a number of times between late June 2007 and 7 August 2007.  On 7 August 2007 Mr Ollier spoke to Ms Dewar by telephone and they arranged to meet.

August 2007 meeting

1. Ms Dewar and Mr Ollier met face to face on 13 August 2007.  At that meeting Mr Ollier gave Ms Dewar a handwritten note with the following written on it: [61]

   [61] Exhibit D1, 235.

   Abn registered for how long? ß CITIBANK 12 [illegible]

   $166 000 @ 8.1% = $284 per week. Wholesale

   $200 000 @ 7.61% = $326 per week. Citibank

   $56 000 ReFinance

   $90 000 Purchase oF Keystart 30%

   equity release        $20 000

   $54 000

   Cost set up ≃ $1500

   100 Point check

   Copy of birth certificate

   Copy of your driver's licence

   Copy of the rates notice

   6 Mths up to date statement on your Keystart loan

   Baycorp

   >

   Ms Dewar's recollection was that the handwritten note was provided to her by Mr Ollier when they first met on 2 April 2007.

2. Mr Ollier's entries in the CRM notes support the finding that the handwritten note was given to Ms Dewar on 13 August 2007.  The reference to 17 Mint Circuit being worth $300,000 is consistent with the reference in the handwritten note to $90,000 being required to purchase 'Keystart 30%'.  Both the handwritten note and the CRM entry for 13 August 2007 referred to a loan of $200,000 from Citibank.

3. On the basis of the handwritten note and the entries in the CRM notes, I find that when they met on 13 August 2007:

   (a)Ms Dewar told Mr Ollier that 17 Mint Circuit was worth $300,000.

   (b)Ms Dewar told Mr Ollier that she owed Keystart $56,000 and repeated that she wanted to purchase the share of 17 Mint Circuit not owned by her.  It is likely that Ms Dewar referred to Keystart as the entity that owned the 30% of 17 Mint Circuit.

   (c)Mr Ollier told Ms Dewar about two possibilities:  first, a loan of $166,000 at an interest rate of 8.1% per annum with a lender referred to by him as 'wholesale' that would require weekly repayments of $284 and, secondly, a loan of $200,000 at an interest rate of 7.61% with Citibank that would require weekly repayments of $326.

   (d)Mr Ollier told Ms Dewar that the first possibility would enable her to be paid $20,000 by way of an 'equity release' and that the second possibility would enable her to be paid $54,000 by way of an 'equity release'.

   (e)Mr Ollier told Ms Dewar that it would cost approximately $1,500 to obtain one or other of the loans.

   (f)Mr Ollier told Ms Dewar that in order to proceed he would need a copy of her birth certificate, a copy of her driver's licence, a copy of her rates notice for 17 Mint Circuit, and an 'up to date' statement from Keystart for the last six months mortgage repayments.

   (g)Mr Ollier told Ms Dewar that she could obtain a copy of her credit record from a web site operated by Baycorp with the address told Mr Ollier that she wanted to borrow $200,000 from Citibank.

   (i)Ms Dewar gave Mr Ollier her Australian Business Number.

4. I am satisfied that when Ms Dewar told Mr Ollier that she would like him to obtain a loan of $200,000 she was not relying on any assurance from him that a loan in that amount was suitable for her particular circumstances.  She had determined the amount for herself.

5. Following the meeting, Mr Ollier obtained a search of the Australian Business Register and saw that Ms Dewar's Australian Business Number had first been registered on 10 October 2002.

September 2007

1. On 10 September 2007, Mr Ollier made an entry in the CRM notes as follows: [62]

10/09/2007 11:39 AM she left a message confirming that she has a new val from ke she has her six months statemment but she wanted to obtain h file.  i left a message sending her to my credit file cb [62] Exhibit D1, 282.

1. On the basis of that entry, I find that on 10 September 2007 Ms Dewar left a message for Mr Ollier to the effect that she had obtained both a valuation of 17 Mint Circuit and a statement for her Keystart loan for the last six months, but that she wanted to obtain her credit file.  Mr Ollier telephoned Ms Dewar and left a message for her giving her the details of the 'mycreditfile' web site referred to in the handwritten note that he had given to Ms Dewar on 13 August 2007.

Ms Dewar decides not to proceed

1. On 27 September 2007 Mr Ollier made the following entry in the CRM notes:

27/09/2007 10:31 am she was with her boyfriend and it did not proceed, close cont [contact][63] [63] Exhibit D1, 282.

1. Mr Ollier recalled having a long meeting with Ms Dewar at a house not far from the Walcott Street property where he had first met Ms Dewar.  A man was present who Mr Ollier assumed or understood was Ms Dewar's boyfriend.  Mr Ollier recalls that the meeting lasted for more than two hours and that in the course of the meeting he discussed different options that might be available to Ms Dewar when applying for a loan.  Mr Ollier discussed different lenders, the impact of different interest rates and the different repayments that would apply in relation to each option discussed by him.  Mr Ollier recalls that the man who was present did not think that Ms Dewar should take out a loan but, in the course of the meeting, Ms Dewar said she wanted to do so, though, at the end of the meeting she decided not to proceed with an application.

2. I find that a meeting took place on 27 September 2007 between Mr Ollier, Ms Dewar and Mr Pavy and that a discussion took place at the end of which Ms Dewar decided that she would not proceed with a new loan to refinance her existing Keystart loan and thereafter Mr Ollier closed his file.

Ms Dewar decides to proceed

1. In late October 2007 Ms Dewar contacted Mr Ollier again.  Two meetings were arranged which Ms Dewar did not attend.  Mr Ollier did, however, meet Ms Dewar on 2 November 2007.  At that meeting Ms Dewar said she did wish to refinance her Keystart mortgage and buy out the Commission's interest in 17 Mint Circuit. 

RAMS application

1. At the 2 November 2007 meeting Ms Dewar signed an application for a 'no doc' loan from RAMS in the amount of $292,000 repayable over 30 years.[64]  There was a conflict between the evidence of Ms Dewar and Mr Ollier as to the circumstances in which the RAMS application was prepared.  Mr Ollier's evidence was that his usual practice was to read aloud the questions posed in the application form and fill in the form according to the answers given by the applicant.  His evidence was that he followed his usual practice.  In cross‑examination Ms Dewar's evidence was that the form had not been completed when she signed it and Mr Ollier had said he would fill it in later.[65]  In her witness statement, however, Ms Dewar suggested that she had 'filled in the RAMS documents'.  She explained that what she meant in her statement was that she had signed the RAMS application not that she had inserted the required information.  This inconsistency in Ms Dewar’s evidence, coupled with my reservations about the reliability of her evidence, are such that I prefer Mr Ollier's evidence.  I find that Mr Ollier adopted the 'question and answer' approach described by him in his evidence in order to complete the form.  The application recorded that the 'purpose' of the loan was 'purchase of investment property $177,500' and 'equity release $114,500'.  The application did not contain a statement of Ms Dewar's assets and liabilities or her income but Ms Dewar signed a 'borrower self‑certification - income & affordability' statement which specified the loan amount as $292,000 and which contained the following statements:[66]

   I have assessed my financial position and living expenses as detailed on the reverse of this document and confirm that I can meet the repayments in accordance with the terms of the loan and will not suffer any hardship in doing so.

   I understand that you have advised me to seek independent legal and financial advice prior to entering into the agreement with you and that I may chose [sic] whether or not to accept that advice.

   I also understand that RAMS is relying on the information above to make an offer of finance.

   …

   I confirm that if no income details have been provided, that all applicants/borrowers are self-employed.

   [64] Exhibit D1, 303.

   [65] ts 178.6.

   [66] Exhibit D1, 313.

2. I am not persuaded that when Ms Dewar made the application to RAMS she was relying on a representation or assurance from Mr Ollier that a loan in the amount of $292,000 was suitable for her circumstances or in reliance on a representation made by him that she could afford the repayments for a loan in that amount.

Finance Broking Agreement

1. When Mr Ollier met Ms Dewar on 2 November 2007 he completed a pre‑printed 'Finance Broking Agreement and Appointment to Act' as referred to earlier in these reasons. 

2. The 'Finance Broking Agreement and Appointment to Act' form was divided into three parts.  Part 1 was headed 'Information on the loan you require'.  In this part of the form the finance broker was recorded as 'Andtrac Pty Ltd trading as Xinc Perth' and Andtrac's address and Mr Walker's name had been typed in.  Other information in the form had been completed in handwriting.  Ms Dewar was recorded as the borrower.  The amount of the loan was recorded as $292,000 and the loan term was 30 years.  The lender was recorded as RAMS.  The repayments were specified as $2,254 per month.[67] In a further printed section of Part 1 of the form, information was provided by reference to a number of headings including: 'Nature and range of services', 'Fees payable by you', 'How we are paid', 'External parties sharing in remuneration' and 'Commissions payable by you'. The information provided by reference to these headings made it clear that 'the broker' did not charge fees to the applicant for a loan but received remuneration by way of commissions from the lenders as set out in Attachments A and B to the agreement. Part 2 of the form was entitled 'Part 2 ‑ General Information about our services'. It included the following paragraphs:[68]

   [67] Exhibit D1, 328.

   [68] Exhibit D1, 330.

   • Before you accept your loan offer, make sure you read the credit contract/loan agreement carefully to find full details of the loan.  Warning:  You should check the loan agreement/credit contract to ensure that the terms of the loan do not vary from what you require.  If they do, inform us immediately so that we can assist you.

   • We are obliged to act in your best interests and give you undivided loyalty unaffected by any of our interests.  However, we also represent lenders and have obligations to them, in particular not to provide any information we know is misleading or deceptive.  We also have obligations under the law to report any fraud, forgery, or other illegal activities.  By signing this agreement you confirm that you understand that we have these obligations to the lender and under the law.  If you have any questions about our role, ask before you sign.

   • We are required to ensure that the finance we arrange for you is appropriate.  Accordingly we will make reasonable enquiries in relation to your needs, objectives, and financial circumstances.

   Warning:  The proposed loan arrangements will be based on the products available from our panel lenders and the information provided by you.  If the information you provide is incomplete or inaccurate, before entering the loan you should consider its appropriateness having regard to your relevant personal circumstances and if necessary seek independent financial advice.

   • If you are refinancing a loan, and your commitments will be increased, you should seek independent financial advice to make sure that you are able to meet the increased commitments.

   Warning:  Your regular repayments may not increase, but the total you have to pay may increase - for example by having to make repayments over a longer period.

   • We do not provide legal or financial advice unless specified in a separate contract.  Accordingly, it is important you ensure you understand your legal obligations under the loan, and the financial consequences.  If you have any doubts, you should obtain independent legal and financial advice before you enter the loan contract.

   • We do not determine or recommend the conditions of the credit contract (such as interest rates, fees, or the term of the loan).

   • We and nobody else will receive any financial or other benefit or have any other interest or relationship which could reasonably be expected to influence our recommendation other than as disclosed in this agreement.

3. Part 3 of the 'Finance Broking Agreement and Appointment to Act' form was entitled 'Part 3 - Privacy Disclosure Statement and Consent'.  In addition to setting out provisions dealing with the disclosure of personal information, this part of the form contained the following statement:[69]

   By signing this document you agree to its terms. It forms a legal contract between us. If you have any questions, ask before you sign.

   Where you are taking out a high LVR loan (i.e. a loan where the loan amount represents an amount which is 85% or greater of the value of the security) or a low doc loan, you agree that you have ensured that you are not overcommitting yourself financially and are able to meet the repayment requirements on your proposed loan without suffering hardship.

   We look forward to providing exceptional service.

   [69] Exhibit D1, 331.

4. Ms Dewar's signature appears at the bottom of Part 3 of the form above a date which appears to be 21 November 2007, though it could be 2 November 2007.  As it was not suggested by anyone that the form was signed on 21 November 2007 and because it referred to the RAMS application, I will assume that Ms Dewar signed it on 2 November 2007.

5. Ms Dewar pleaded that Mr Ollier presented her with only the last page of the Finance Broking Agreement and Appointment to Act, that is Part 3, which required her signature.  Ms Dewar said that Mr Ollier inserted her initials on the bottom of each of the other pages of the form and attachments A and B.  The initials were in uppercase letters.  Ms Dewar gave evidence that she normally used lowercase letters when required to write her initials.[70]  In cross-examination Ms Dewar was taken to several instances in which she had written her initials in uppercase and she accepted that her evidence that she usually used lowercase when writing her initials was wrong.[71]  I am satisfied that Ms Dewar both signed Part 3 of the form and inserted her initials on each of the other pages.  I am satisfied that Ms Dewar had an opportunity to read the form.

RAMS application unsuccessful

[70] ts 69.

[71] ts 167 - 170.

1. Mr Ollier made entries in the CRM notes on 7 and 19 November 2007 as follows: [72]

   07/11/2007 loan declined as it shows on rate notice that she receives a penssion,i checked with corrinna and she confirmed tht it is a single parenting penssion,jodi from RAMS said to get a copy of penssion docs and we can try again.i called corinna and ash her forr a copy of her penssio docs.

   19/11/2007 loan declined by RAMS, I CAN go with wholesale if she gets a copy of the certificate of title.cb, told her that the akf ill be $300 instead of $98

   Booked meeting in the office tomorrow.Andrew will interview her and submit loan.

   [72] Exhibit D1, 285.

2. On the basis of those entries, I find Mr Ollier submitted Ms Dewar's application to RAMS and on about 7 November 2007 he received notice that the application had been declined.  Mr Ollier established that the reason why the application had been declined was because a rates notice for 17 Mint Circuit that had accompanied the application disclosed that Ms Dewar was in receipt of a 'single parenting pension'.  Mr Ollier was told that if he obtained a copy of the pension documents he could renew the application.  Mr Ollier obtained the pension documents and the loan application was resubmitted.  The application was declined again on 19 November 2007.

3. On 19 November 2007 Mr Ollier spoke to Ms Dewar and told her that the application to RAMS had been unsuccessful but that an application could be made to another lender, whom he described as Wholesale Funds, if Ms Dewar could obtain a copy of the certificate of title for 17 Mint Circuit. 

4. On 19 November 2007 Ms Dewar faxed a copy of the certificate of title to Mr Ollier.  On 20 November 2007 Ms Dewar faxed him a letter she had received from the Department of Housing and Works dated 7 November 2007.  The letter referred to an attached transfer of land document and an 'offer and acceptance' that provided for the sale and transfer of the Commission's interest in 17 Mint Circuit to Ms Dewar.  The author of the letter requested that Ms Dewar sign the transfer and the offer and acceptance.  The letter recorded that the valuation that had been undertaken for the purpose of the transaction was valid for three months from 12 September 2007.  The transfer and the offer and acceptance were not in evidence, but I infer from the fact that Ms Dewar did acquire the Commission's interest in 17 Mint Circuit that Ms Dewar signed the offer and acceptance and the transfer.  The letter of 7 November 2007 also enclosed a GST invoice addressed to Ms Dewar for the settlement fees and expenses incurred by reason of the refinancing and an interim settlement statement.

5. In subsequent telephone conversations Mr Ollier told Ms Dewar that the account keeping fee for a loan arranged through Wholesale Funds would be $300 and not $98 and he arranged for Ms Dewar to meet Mr Walker on 20 November 2007 for him to interview Ms Dewar and submit the loan application to Wholesale Funds.  Mr Ollier says that this arrangement was made because he was not available to meet Ms Dewar himself.

20 November 2007 meeting and the Wholesale Funds application

Who attended the 20 November 2007 meeting?

1. The first issues raised by Ms Dewar are:  was the loan application form completed before Ms Dewar signed it, and did Ms Dewar meet Mr Ollier or Mr Walker on 20 November 2007?

2. Ms Dewar denies that Mr Ollier arranged for her to meet Mr Walker and denies that she attended a meeting with Mr Walker.  Her evidence is that she met Mr Ollier at her home and she signed a printed Mortgage Loan Application form.  She said that on 20 November 2007 she did not have a car because the car that she had been driving had broken down and had to be towed away.  She gave this as the reason why she could not have travelled to Andtrac's office in Osborne Park.[73]  She accepted, however, that Mr Pavy could have taken her to Andtrac's office.[74] 

   [73] ts 195.

   [74] ts 195.

3. It is common ground that a Mortgage Loan Application form was completed.  The application form was a pre-printed 11‑page form.  It comprised a number of different sections which had to be completed and signed by Ms Dewar.  These included:  a Personal Financial Statement, a Loan Purpose Checklist, and a Declaration as to Loan Purpose.  To complete the application paperwork Ms Dewar was required to sign a 'Fastdoc Declaration of Financial Position' and the broker was required to sign a 'Record of Interview'.

4. Ms Dewar alleges that she signed the Mortgage Loan Application but when she did so parts of it were not completed and Mr Ollier completed them later.  Consequently, she says she did not know what was contained in them.  Mr Ollier says that he completed the loan application after he had spoken to Ms Dewar on 19 November 2007 and that he used information she had provided to him for the purposes of the RAMS application and additional information she provided to him in the telephone conversation on 19 November.[75] 

   [75] Exhibit D8 pars 148 - 152.

1. In my judgment, on the basis of what was known to Mr Ollier and what should have been known to him, it was reasonable for Mr Ollier to form the view that an application for a no doc loan was an appropriate loan for Ms Dewar to make and he was entitled to rely on Ms Dewar to determine the amount of the loan she wanted and whether she could afford the repayments for such a loan.

2. I am not persuaded that Mr Ollier breached his obligation to act with undivided loyalty unaffected by his own or Andtrac's interests.  Nor am I persuaded that Mr Ollier acted otherwise than in good faith towards Ms Dewar.  The evidence is insufficient to sustain those conclusions.

Did the breach of duty cause Ms Dewar to suffer loss?

1. Ms Dewar claims damages for the loss of the equity in 17 Mint Circuit she says she would have accumulated had she not mortgaged the property to secure the loan from GEL. 

2. The defendants deny that any of the breaches alleged by Ms Dewar caused her loss.  The critical issue is whether the breaches of duty I have held were committed by Mr Ollier and Andtrac caused the loss claimed by Ms Dewar. 

3. The onus is on Ms Dewar to prove, on the balance of probabilities, that her loss was caused by those breaches, whether characterised as breaches of the tortious duty or the contractual duty.[155]  Ms Dewar must show that the harm suffered by her would not have occurred in the absence of the conduct constituting the breach - was that conduct a necessary condition of the harm?  Put shortly, but for the conduct, would the harm have been suffered?[156]

   [155] Civil Liability Act 2002 (WA) (CLA) s 5D read with s 5A(2).

   [156] CLA s 5C(1)(a).

4. The first question is: had the statements contained in the Mortgage Loan Summary to the effect that:

   (a)the application to RAMS was withdrawn because Ms Dewar was concerned with 'their unstable state (bad publicity in the media)';

   (b)Ms Dewar had been working as a self-employed tiler since 2002; and,

   (c)Ms Dewar's wish to borrow additional funds as an 'equity release for investment purposes - purchase of shares or purchase of a new investment property',

   not been made, would Ms Dewar have suffered the losses she claims?  Expressed in another way, had the Mortgage Loan Summary disclosed the true position, that is, that RAMS declined Ms Dewar's application because she was in receipt of a Family Payment Allowance, that she had only been working as a self-employed tiler for just over a year, and that she was not going to use the equity release portion of the funds for investment purposes, would GEL have offered her a loan?

5. Dr Pasquale Franzese gave opinion evidence on this causation issue.  He was asked to express opinions on the likelihood or otherwise of the loan being granted had information other than that set out in the Mortgage Loan Summary been provided to GEL.  His opinions may be summarised as follows:[157]

   (a)If the statement that an application for refinance had been made to RAMS, but that it had been withdrawn, had not been made, Ms Dewar's chances of obtaining a loan from GEL would not have been affected adversely.

   (b)Had GEL been informed that an application for refinance had been made to RAMS but that it had been declined this would not have prevented Ms Dewar from obtaining the loan.  Dr Franzese identified three reasons for this:  first, because the application to RAMS was not noted on Ms Dewar's Veda credit file; secondly, there were no other lender enquiries listed on her Veda credit file for similar loan amounts or types; and, thirdly, there were other aspects of Ms Dewar's application that met GE loan policy and cast the application in a favourable light.

   (c)Disclosure or non-disclosure of the 'periodical informal lease agreement' with a family member (whether or not such disclosure included a statement that rent was paid) would not have prevented Ms Dewar from obtaining the loan.

   (d)If the statements made in the Mortgage Loan Summary about Ms Dewar's work history as a self-employed tiler had not been made, this would not have affected Ms Dewar's application adversely.

   (e)If GEL had been told that Ms Dewar had been self-employed as a tiler since mid-2006 this would not have prevented Ms Dewar from being granted the loan because the Fastdoc70 loan criteria did not include a minimum period of self-employment.

   (f)If GEL had been told that the proposed 'equity release' funds were for a purpose other than 'the purchase of shares and or the purchase of a new investment property' this would not have constituted a reason for not granting the loan provided the purpose for which the loan funds were going to be used was an 'acceptable purpose' and provided there was consistency between the actual purpose and the purpose stated in the loan purpose declaration.

   [157] Exhibit D7A, 13 - 17.

6. The opinions summarised in the preceding paragraph must be assessed in the context of Dr Franzese's opinions about Ms Dewar's loan application.  Those opinions may be summarised as follows:

   (a)A no doc loan application was the appropriate loan application for Ms Dewar to make because, amongst other reasons, as a self‑employed sole trader, she was unlikely to satisfy the criteria for a loan application of any other type.  In his oral evidence Dr Franzese emphasised that the whole purpose of a Fastdoc70 loan application was that applicants were not required to provide details of their income but instead declared that they could afford the repayments.[158]

   [158] ts 571.5.

   (b)Ms Dewar's application had a number of favourable points which enhanced the chance of her application being successful.  These were:

   (i)The loan to valuation ratio was 70%, which was under the 'industry' maximum of 80% for low doc type loans.

   (ii)Ms Dewar had a 'clean' credit history at the time of the application and the approval.

   (iii)The NSR calculator analysis derived the minimum NSR with or without the 'rental' being included.

   (iv)Ms Dewar had a track record of meeting her loan commitments with Keystart.

   (v)There were not multiple credit enquiries on Ms Dewar's credit file for a similar loan amount or type.

   (vi)Ms Dewar had a positive net asset position.

   (vii)Ms Dewar's stated loan purpose met the GE loan policy.

   (viii)Lender mortgage insurance had been approved by Genworth.[159]

   [159] Exhibit D7A, 18.

7. Whether Ms Dewar's application for a loan would have been successful had the true position in relation to the RAMS application, the use to which the equity release portion of the loan and her work history as a self-employed tiler been disclosed is a hypothetical question to be determined by reference to the inferences arising from the facts as I have found them.  Ms Dewar must show that the facts raise the inference that it is more probable than not that the application would have been declined.[160]

   [160] Flounders v Millar [2007] NSWCA 238 [35] (Ipp JA, Handley AJA agreeing); Siegwerk Australia Pty Ltd (in liquidation) v Nuplex Industries (Aust) Pty Ltd [2013] FCAFC 130 [85] (Robertson J, Dodds-Streeton J agreeing).

8. In my view, had the application disclosed that Ms Dewar had been self‑employed as a tiler for just over one year as opposed to for five years this would not have led to a rejection of her application for a loan.  The Fastdoc70 loan criteria did not require a minimum period of self‑employment. 

9. The two other matters, the reason why the RAMS application was declined and the purpose for which Ms Dewar wished to borrow the equity release funds, are likely to have been matters to which more significance would have been attached.

10. The inclusion of a question in the Wholesale Funds application form about previous applications for loans made by an applicant and the fact that Mr Ollier considered it important to address the issue of the application to RAMS in the Mortgage Loan Summary evidence the importance of knowing about previous applications for finance and the reasons why they did not proceed from a prospective lender's perspective.  Such information has the potential to provide an insight into the credit risk posed by an applicant.

11. Likewise it was obviously important for a prospective lender to know to what use funds advanced by way of an equity release were going to be put.  That this was an important consideration is to be inferred from: the Loan Purpose Declaration Ms Dewar was required to make; the requirement to state the purposes of the loan on the application for Lender's Mortgage Insurance; and, the specific enquiry made by Mr McLynskey as to how Ms Dewar was going to use the equity release portion of the funds.  I infer that the importance from a lender's perspective of knowing the purpose of the loan was, in part, so that the lender could be satisfied that the use was an acceptable use having regard to the type of the loan and, in part, so that the lender could be assured that the loan repayments were not going to be serviced from the loan funds themselves, that is, the loan did not constitute asset based lending.

12. The inference that the loan application would have been successful even if the reason for the RAMS application being declined and Ms Dewar's work history had been stated accurately, and the statement that the equity release portion of the loan funds was to be used for the acquisition of a share portfolio or an investment property had not been made, is supported by:

    (a)The opinions expressed by Dr Franzese;

    (b)The fact that Ms Dewar's application did satisfy the Fastdoc70 criteria;

    (c)The fact that the receipt of Family Payment Allowance was not a bar to an applicant being granted a loan by GE Money. 

13. In my view, however, had the reason for the rejection of the RAMS application been disclosed I think it is likely that this would have provoked questions on the part of Gemworth and GE Money about Ms Dewar's ability to service the loan.  I infer that this would have been so from the fact that both Gemworth and GE Money scrutinised Ms Dewar's application closely.

14. The use to which the equity release portion of the funds was to be put was a matter of some significance - Mr McLynskey did not consider the explanation provided in the Loan Purpose Declaration and in the application for lender's mortgage insurance that $57,500 of the amount was to be used for 'personal purchases' was adequate, even though 'personal purposes' was an 'acceptable purpose' as defined in the Credit Origination Policy.  I think it likely that had it been disclosed to Mr McLynskey of Gemworth that Ms Dewar had no particular use in mind for the $57,500, he would not have approved lender's mortgage insurance for a loan of $245,000 and that consequently GE Money would not have made an offer of a loan of $245,000 to Ms Dewar. 

15. This case is to be contrasted with the hypothesis adopted by Dr Franzese because there was an inconsistency between the purpose stated in the Mortgage Loan Summary and the actual purpose.  In my assessment, Gemworth would not have offered mortgage lending insurance had it made the further enquiry about Ms Dewar’s use of the $57,500 and received the correct answer to the effect Ms Dewar had no particular use in mind for the funds.   Without mortgage lending insurance of $245,000 GEL would not have made the loan offer of $245,000.  A further enquiry about the use of the 'equity release' funds as well as a separate enquiry about Ms Dewar’s ability to meet the repayments would have made it even more unlikely that an offer of a loan of $245,000 would have been made.  

16. A second causation question is raised by the defendants, namely:  were any losses suffered by Ms Dewar following the advance of the loan funds and the mortgage to GEL caused by any breach of duty that is established? 

17. In support of the contention that Ms Dewar suffered no quantifiable loss following entry into the loan, reliance was placed on Ms Dewar's evidence that her work injuries incapacitated her and this incapacity was the start of her difficulties in servicing the GEL loan which were compounded by a lack of work - she said she did not think of blaming Xinc for her predicament.[161] 

    [161] Exhibit D12 pars 2(a), (b); ts 276 - 279, 280 - 283 and 292.

18. In my assessment, neither Ms Dewar's work injuries nor the lack of work are sufficient to break the causal relationship between the breaches of duty on the part of Mr Ollier and Andtrac and the loss claimed by her.  I accept that Ms Dewar's injuries and the lack of work were causes of her loss in the form of the interest and other charges she incurred by failing to make the repayments when they fell due but those losses would not have been incurred had she not been offered and accepted the GEL loan. 

Claim for equitable compensation for breach of fiduciary duty or assistance in breach of a fiduciary duty

1. The duty to render finance broking services with reasonable skill, care and diligence that I have found to have been breached by Mr Ollier and Andtac is a duty that is prescriptive in nature.  It is not a duty of a fiduciary nature.[162] 

   [162] See Collard v State of Western Australia [2013] WASC 455 and the cases cited at [1218] - [1220] (Pritchard J).

2. I am not satisfied that Mr Ollier, and by extension Andtrac, breached the duty (which was fiduciary in nature) owed by them not to act in their own interests in conflict with Ms Dewar's interests. Consequently, Ms Dewar's claim for breach of fiduciary duty fails as does her related claim that Mr Walker, Atnam and Andtrac knowlingly assisted Mr Ollier's breach of fiduciary duty.

Misleading or deceptive conduct claim

1. Division 2 of Pt 2 of the ASIC Act contains provisions regulating unconscionable conduct and providing protection for consumers in relation to financial services.[163]  These provisions include a prohibition against engaging, in trade or commerce, in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.[164] 

   [163] References to sections within the ASIC Act are references to those sections as they stood in 2007.

   [164] ASIC Act s 12DA.

2. A person who suffers loss or damage by conduct of another person that contravenes s 12DA may recover the amount of the loss or damage by action against that other person.[165]

   [165] ASIC Act s 12GF.

3. Any conduct engaged in on behalf of a body corporate by an agent acting within the scope of the agent's actual or apparent authority is taken for the purposes of Div 2 to have been engaged in by the body corporate.[166]

   [166] ASIC Act s 12GH(2).

4. The term 'financial services' is defined in wide terms in s 12BAB of the ASIC Act. The defendants did not contend that the finance broking services rendered by Mr Ollier and Andtrac did not constitute 'financial services' for the purposes of s 12BAB. The term ‘Financial services’ is defined to include financial product advice that is, relevantly and subject to presently irrelevant exceptions, a recommendation or statement of opinion that is intended to influence a person in making a decision about a particular financial product.[167]  A 'credit facility' is a 'specific thing' that is a 'financial product'.[168]   'Credit facility' is defined to include the provision of credit and the provision of a mortgage that secures an obligation under a credit contract.[169]

   [167] ASIC Act s 12BAB(1)(a) and (5)(a).

   [168] ASIC Act s 12BAA(7).

   [169] Australian Securities and Investment Commission Regulations 2001 (Cth) reg 2B.

5. Conduct is misleading or deceptive if, viewed as a whole, it has a tendency to lead a person into error.[170]

   [170] Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 [ 25] (French CJ).

6. Whether conduct is misleading or deceptive is a question of fact to be determined objectively in the light of the surrounding facts.  A person may contravene an applicable statutory prohibition even though the person acts honestly and reasonably.[171] For loss or damage to be recoverable under s 12GF of the ASIC Act it must be suffered 'by' the contravening conduct; that is, there must be a causal connection between the conduct and the loss or damage.

   [171] Google Inc v Australian Competition and Consumer Commission (ACCC) [2013] HCA 1; (2013) 249 CLR 435 [9].

7. Ms Dewar's claim rests upon four representations she alleges were made by Mr Ollier.  The only representation that Ms Dewar has established is the representation that Mr Ollier admits he made, that is, that he would find her the most suitable loan for her circumstances.

8. The first question is what was conveyed by the representation that Mr Ollier would find Ms Dewar the most suitable loan for her circumstances.  I consider the representation conveyed that Mr Ollier would find Ms Dewar a loan on terms which were most suitable for her circumstances as she had disclosed them to him.  The terms are the terms as to fees, interest, the duration of the loan and other standard commercial terms.  In the context in which the representation was made, I do not consider that it was intended to convey, did convey or was understood by Ms Dewar as conveying that Mr Ollier would exercise any professional judgment about the amount of the loan. 

9. Understood as conveying no more than that the terms of the loan - other than the amount - would be suitable for Ms Dewar's circumstances, the representation was not misleading on the basis contended for by Ms Dewar as the terms of the GEL loan were suitable for her circumstances.

10. Moreover, in my assessment, Ms Dewar understood that how much she wished to borrow was a matter for her to work out.  As I have stated earlier I am not persuaded that Ms Dewar made the Wholesale Funds application or signed the GEL loan documents and mortgage on the basis that Mr Ollier had represented to her that a loan in the amount of $245,000 was suitable for her circumstances.

11. Consequently, Ms Dewar's misleading or deceptive conduct claim fails.

Unconscionable conduct claim at general law

1. As explained by the Court of Appeal in Serventy v Commonwealth Bank of Australia,[172] under the general law unconscionable conduct occurs if one party (A) takes advantage of an inability another party (B) to make decisions in their own interests in circumstances where this inability was sufficiently evident to render A's conduct exploitative.  B's special disability is sufficiently evident to A if, and only if, A actually knows of it or is wilfully blind to it: constructive conduct is not sufficient.  This is because unconscionable conduct involves a 'predatory state of mind' and exploitation or victimisation, albeit that in this context victimisation should not be narrowly understood.[173]

   [172] Serventy v Commonwealth Bank of Australia (No 2) [2016] WASCA 223.

   [173] Serventy v Commonwealth Bank of Australia (No 2) [18] (Newnes & Murphy JJA and Beech J).

2. Traditionally, relief in respect of unconscionable dealings takes the form of setting aside an impugned transaction in whole or in part or resisting enforcement action together with such consequential orders as are necessary to achieve practical justice.[174]  The availability of relief in the form of equitable compensation for unconscionable conduct has, however, been recognised in the authorities and in text books.[175]

   [174] Australia and New Zealand Banking Group v Dziencial [2001] WASC 305 [413] (McLure J).

   [175] Smith v Town & Country Bank (Unreported, FCt SCt of WA; Library No 970716; 18 December 1997) (Malcolm CJ, Kennedy & Owen JJ); Karam v ANZ Banking Group Ltd [2001] NSWSC 709 [425] - [431] (Santow J); Young P W, Croft C and Smith M L, On Equity (2009) [16.1160].

3. Ms Dewar contends that she was under a special disadvantage by reason of one or more of the following:

   (a)she only completed her formal education to year 10;

   (b)she suffered from dyslexia;

   (c)she was not educated in financial matters;

   (d)she was a full‑time mother for 16 years while raising her children and had little financial or commercial experience;

   (e)her only prior experience of obtaining a mortgage was obtaining the Keystart loan; and

   (f)she had limited financial means,

   and she contends that as a result she was unable to protect her interests properly in completing the Finance Broking Agreement and the loan application to Wholesale Funds.[176]

   [176] Re-substituted statement of claim par 43.

1. I accept that Ms Dewar had limited experience in financial matters but I do not accept she was unable to protect her interests.  In 2007 she was a mature woman with experience of life.  She had progressed her education as an adult by taking TAFE courses in business and law, subjects that required an ability to understand relatively complex concepts.  She was a resourceful person.  She had taken positive steps to improve her own education and improve the educational opportunities of her children.  She had learnt a new trade at a comparatively late stage in her working life and had established her own business.  I am not satisfied that Ms Dewar was unable to protect her own interests as she alleges. 

2. It follows from the views I have just expressed that I find that Mr Ollier was not aware of any special disadvantage suffered by Ms Dewar.  For these reasons Ms Dewar's unconscionable conduct claim under the general law fails.

Unconscionable conduct claim under the ASIC Act

1. Section 12CB of the ASIC Act provides a general prohibition on engaging, in the course of trade or commerce, in conduct in relation to financial services, that is, in all the circumstances unconscionable. Unconscionable conduct for the purposes of s 12CB of the ASIC Act is not limited to conduct that is unconscionable under the general law.

2. For the purposes of this case, however, it is unnecessary to consider the ambit of unconscionable conduct that would contravene s 12CB as the facts relied upon by Ms Dewar for the purposes of the statutory claim are the same as the facts relied upon by her for the purposes of her claim under the general law and I have found that the factual basis for that claim is not made out. Consequently, Ms Dewar's unconscionable conduct claim under the statute also fails.

Ms Dewar’s reliance on the Corporations Act 2001 (Cth)

1. In the course of closing submissions Ms Dewar submitted that various provisions of the Corporations Act were relevant to her claims.  I gave Ms Dewar leave to file and serve written submissions identifying the provisions she relied upon and explaining how they assisted her case.  Ms Dewar filed and served submissions but the provisions relied upon do not assist her claims and it is unnecessary for me to comment on them.

Issues raised by the defendants

Did Ms Dewar cause or contribute to her own loss?

1. I am satisfied that Ms Dewar suffered damage as a result of the breaches of duty on the part of Mr Ollier and Andtrac.  The defendants contend that Ms Dewar's damages should be reduced because she was guilty of contributory negligence.  If a court is satisfied that a plaintiff has been guilty of contributory negligence, it shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the court thinks just in accordance with the degree of negligence attributable to the plaintiff.[177]

   [177] Law Reform (Contributory Negligence and Tortfeasors' Contribution) Act 1947 (WA) s 4.

2. In determining whether a plaintiff has been contributorily negligent the same standard of care as applied to determine the liability of a defendant in negligence is to be applied.  For that purpose, the standard of care required is that of a reasonable person in the position of the plaintiff taking into account what they knew or ought to have known at the time.[178]

   [178] CLA s 5K(1) and (2).

3. Mr Ollier's contributory negligence case focusses on Ms Dewar's conduct prior to executing the GEL loan documentation and on her conduct after she went into arrears.  As to the former, Mr Ollier alleges that Ms Dewar knew or ought to have known that entering into a loan in the amount sought by her would involve her over-committing herself financially.  Notwithstanding that Ms Dewar would be over-committing herself, she signed the Fastdoc Declaration of Financial Position declaring that she could comfortably afford repayments of $2,306 per month having previously signed the Finance Broker Agreement in which she declared that she had ensured that she was not over-committing herself financially and that she was able to meet the repayment requirements on the loan she sought from RAMS.  As to Ms Dewar's conduct after she was in arrears with her repayments, Mr Ollier alleges that she failed to take any steps to enter into an alternative arrangement with GEL until 22 July 2010 and when sued by GEL for possession she elected to defend the summary judgment application by raising untenable defences that could not possibly succeed.

4. Although in November 2010 Ms Dewar thought that her business was doing well, as I have noted earlier, in the course of cross-examination she accepted that in the quarter ending in September 2007 her business had made a loss.[179]  Ms Dewar also accepted that when she signed the Fastdoc Declaration of Financial Position declaring that she could afford repayments of $2,306 per month she was taking a risk that she would be over-committing herself financially.[180]  Ms Dewar accepted that she should have thought about the loan for which she applied and the repayments she would have to make more carefully.[181]

   [179] ts 163.2.

   [180] ts 211.8.

   [181] ts 228.3.

5. In my judgment, a reasonable person in Ms Dewar's position in November 2007 would not have signed the Fastdoc Declaration of Financial Position.  The Fastdoc Declaration of Financial Position was a cause of GEL making the loan offer to Ms Dewar - but for the declaration that Ms Dewar could afford the repayments the offer would not have been made.  Ms Dewar was contributorily negligent.  I consider that her degree of negligence was significant and had I found that her claims were not statute barred I would have reduced her damages by 60%.

Did Ms Dewar fail to mitigate her loss?

1. I consider the contentions raised by Mr Ollier in relation to Ms Dewar's conduct in the period after she fell into arrears with her repayments are more properly considered in the context of the question of whether Ms Dewar failed to mitigate her loss.

2. A plaintiff must take all reasonable steps to mitigate his or her loss consequent upon a breach of contract or negligent breach of duty.[182]  The standard of reasonableness involves a consideration of what a reasonable person in the circumstances of the plaintiff would have done to avoid further loss.[183] 

   [182] British Westinghouse Electric & Manufacturing Co Ltd v Underground Electric Railways Co of London [1912] AC 673, 689 (Viscount Haldane VC); Richardson v Schultz (1980) 25 SASR 1, 19 (Williams J).

   [183] Sherson & Associates Pty Ltd v Bailey [2000] NSWCA 275 [77] (Heydon JA, Priestley JA agreeing).

3. As I have noted, Mr Ollier argues that Ms Dewar failed to mitigate her loss because once she was in arrears in her repayments and GEL was threatening proceedings it should have been clear to her that she could not afford to keep 17 Mint Circuit and she should have sold it.   

4. In making a determination about whether Ms Dewar took reasonable steps to mitigate her loss it is necessary to guard against hindsight bias.  That said, in my judgment a reasonable person in the position of Ms Dewar would have taken steps to sell 17 Mint Circuit by no later than the end of 2011 by which stage her application for hardship assistance had been rejected.  At that stage, Ms Dewar owed $287,584.[184]  It should have been obvious to Ms Dewar, and I find it was, that she would not be able to pay off the arrears without selling 17 Mint Circuit.  Ms Dewar said she did not sell 17 Mint Circuit because she wanted to fight for what she considered was her family home to which she had an emotional attachment.[185]  Whilst that attachment may be understandable I consider it was unreasonable for Ms Dewar not to put the property on the market at the end of 2011. 

   [184] Exhibit D1, 552.

   [185] ts 330.

The quantum of Ms Dewar's loss

1. I am satisfied that Ms Dewar suffered loss as a result of entering the GEL loan and mortgage.  She entered a transaction that she could not afford.  As a result her equity in 17 Mint Circuit was diminished and she incurred interest and other charges she could not afford to meet.  Ms Dewar quantified her loss and that quantification was the subject of criticism by the defendants.  As the parties have not had the opportunity to make submissions on the consequences that flow from my finding that Ms Dewar failed to mitigate her loss I will not make a provisional assessment of Ms Dewar's damages.

The application of the Limitation Act

1. The effect of s 13 of the Limitation Act 2005 (WA) is that, subject to certain exceptions, actions cannot be commenced if six years have elapsed since the cause of action accrued. This means Ms Dewar was required to commence her claims for damages for breach of contract and negligence within six years of the date upon which those causes of action accrued.

2. A cause of action accrues when all the facts have occurred which give rise to a right to sue.[186]

   [186] Do Carmo v Ford Excavations Pty Ltd [1984] HCA 17; (1984) 154 CLR 234, 245 (Wilson J).

3. In claims for breach of contract, the cause of action accrues at the time of the breach of contract,[187] because damage is not an element of the cause of action.

   [187] Hawkins v Clayton [1988] HCA 15; (1988) 164 CLR 539, 583 (Deane J).

4. As previously stated, Ms Dewar commenced this action on 28 May 2015.

5. Andtrac's breach of contract occurred in November 2007.  That is when Ms Dewar's cause of action accrued and an action in respect of it could not be commenced after the elapse of six years, that is, after November 2013.  Ms Dewar's claim based on the breach of contract must fail because it was not commenced within the applicable limitation period.

6. A cause of action for damages for negligence accrues when the plaintiff suffers actionable damage.[188] 

   [188] Hawkins v Clayton (587) (Deane J with whose reasons Mason CJ and Wilson J, relevantly, agreed, 543).

7. As was submitted on Mr Ollier's behalf the answer to the question of when a cause of action for negligence causing economic loss accrues requires a consideration of the precise interest infringed by the negligent act or omission.[189]

   [189] Wardley Australia Ltd v Western Australia [1992] HCA 55 [15]; (1992) 175 CLR 514, 529 (Mason CJ, Dawson, Gaudron & McHugh JJ); Kenny & Good Ltd v MGICA [1999] HCA 25 [15]; (1999) 199 CLR 413 424 (Gaudron J) and 447 (Gummow J).

8. Ms Dewar's primary interest infringed by the breaches of duty found by me was her equity in 17 Mint Circuit.  Arguably, Ms Dewar suffered damage when she executed the mortgage in favour of GEL because the execution of the mortgage diminished her equity.[190]  The latest date upon which it could be said that Ms Dewar first incurred damage was in June 2008 when she fell into arrears with her loan repayments and incurred interest and other charges.  On this basis, Ms Dewar was required to bring her action for damages for negligence within six years of June 2008, that is, by June 2014.  Her claim for damages for negligence fails because the action was not commenced within the limitation period.

   [190] Wardley Australia Ltd v Western Australia at 529 referring to Forster v Outred & Co [1982] 1 WLR 86.

9. Ms Dewar sought to overcome the limitation defences by relying on s 38(2) of the Limitation Act.  That provision enables a plaintiff to apply to the court to extend the time within which an action can be commenced by up to three years from when the action ought reasonably to have been commenced if the court is satisfied that the failure to commence the action was attributable to fraudulent or other improper conduct of the defendant or a person for whom the defendant is vicariously liable. 

10. Ms Dewar did not make a formal application to extend the time for commencing the action. In my judgment, an application under s 38(2) of the Limitation Act would not have assisted Ms Dewar because, on her own evidence, by March 2012 she had formed the view that she had been 'scammed' by Xinc and that she wanted to sue Mr Ollier.[191]  She telephoned Mr Ollier on 26 March 2012 and told him that she wanted to take him to court.[192]  Ms Dewar wanted, however, to give Mr Ollier the opportunity to help her sue GEL.[193]  In August 2012 Ms Dewar corresponded with Mr Ollier and referred in some detail not only to her intention to sue him but also to the basis of her proposed action.  She referred to the fact that she had sought legal advice. 

    [191] ts 307.8.

    [192] Exhibit D1, 279.

    [193] ts 308.1.

11. In the light of those facts, it cannot be said that the failure to commence the action was attributable to fraudulent or other improper conduct on the part of Mr Ollier, let alone Andtrac.  Not only was there was no such conduct, but Ms Dewar was aware that she had grounds to sue Mr Ollier and Andtrac by early 2012.  It is significant that in August 2012 Ms Dewar notified Mr Ollier that she was going to sue him and that she had sought legal advice.  Ms Dewar's failure to commence the action within the limitation period was not attributable to either Mr Ollier or Andtrac.  Ms Dewar's action was commenced outside the limitation period and the law requires that it must be dismissed.

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

JB
ASSOCIATE TO THE HONOURABLE JUSTICE TOTTLE

19 JULY 2018