Leybourne v Permanent Custodians Ltd

[2010] NSWCA 78

New South Wales

Court of Appeal

CITATION:	Leybourne v Permanent Custodians Ltd [2010] NSWCA 78
HEARING DATE(S):	9 March 2010
JUDGMENT DATE:	23 April 2010
JUDGMENT OF:	Giles JA; Tobias JA; Sackville AJA
DECISION:	(1) Appeal dismissed with costs. (2) Discharge the stay granted on 25 May 2009.
CATCHWORDS:	CONTRACT - loan agreement - pre-contractual statement under Credit Code - part of offer - offer accepted - deed not necessary - addition of "per" to lender's signature - not material change - Real Property Act ss 36(10)(a), 36(11), 51A - Conveyancing Act ss 23C, 38 not relevant - intention to create legal relations manifested - agreement binding - no question of principle. MORTGAGE - signed by solicitor for mortgagee to certify correctness of dealing - solicitor's name substituted - not material alteration - mortgage secured an enforceable loan agreement - memorandum validly incorporated - no question of principle. PROCEDURAL FAIRNESS - application for adjournment in order to apply to consolidate with other proceedings - application for adjournment due to late production of evidence - leave to apply again if prejudice shown - no procedural unfairness - solicitor appearing for himself - not to be treated as unrepresented litigant. EVIDENCE - Evidence Act ss 135, 136 - no unfair prejudice - no error shown. AGENCY - authority to sign for lender - on facts, was authority - in any event, ratification established - not necessary for ratification to know particular act of agency.
CASES CITED:	Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259; Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498; Bakerland Pty Ltd v Coleridge [2002] NSWCA 30; Bremner v Sinclair NSWCA, 3 November 1998; (2001) ANZ Conv R 29; Brockway v Pando [2000] WASCA 192; Eastern Construction Co Ltd v National Trust Co Ltd (1914) AC 197; Farrow Mortgage Services Pty Ltd (in liq) v Slade & Anor (1996) 38 NSWLR 636; Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449; Iannello v Sharpe [2007] NSWCA 61; (2007) 69 NSWLR 452; Jones v Peters (1948) VLR 331; Longhurst v Hunt [2004] NSWCCA 193; (2002) 130 A Crim R 256; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 208 ALR 213; Papakosmas v The Queen (1999) 186 CLR 297; Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32; Petersen v Moloney (1951) 84 CLR 91; Pigot's case (1614) 11 Co Rep 26b; 77 ER 1177; Provident Capital Limited v Printy [2008] NSWCA 131; 13 BPR 25,199; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182; Union Bank of Australia Ltd v McClintock (1922) 1 AC 240; [2006] NSWSC 1028; Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238.
PARTIES:	Brett Leybourne - Appellant Permnanent Custodians Ltd - Respondent
FILE NUMBER(S):	CA 2009/298240
COUNSEL:	Appellant in person S B Docker - Respondent
SOLICITORS:	Appellant in person Kemp Strang Lawyers
LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	15297/06
LOWER COURT JUDICIAL OFFICER:	Grove J
LOWER COURT DATE OF DECISION:	20 April 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Permanent Custodians Ltd v Leybourne [2009] NSWSC 288

CA 2009/298240
SC 14297/06

GILES JA
TOBIAS JA
SACKVILLE AJA

Friday 23 April 2010

LEYBOURNE v PERMANENT CUSTODIANS LIMITED

Judgment

1 THE COURT: The respondent claimed against the appellant possession of a property at Wentworth Falls (“the property”) and judgment for a money sum, on the basis that it had made a loan to the appellant on the security of the property and the appellant had defaulted in repayment.

2 The appellant denied that the loan agreement and the mortgage on which the respondent relied were legally binding or enforceable, and otherwise that the respondent was entitled to the relief it claimed. He cross-claimed against the respondent for variation of and other relief in relation to the mortgage, and for damages.

3 The trial judge, Grove J, gave judgment for the respondent for possession of the property and for $573,234.59, gave judgment for the respondent on the cross-claim, and ordered costs against the appellant: Permanent Custodians Ltd v Leybourne [2009] NSWSC 288.

4 In the appeal against these orders, as at the trial, the appellant appeared for himself. He is a practicing solicitor.

5 For the reasons which follow, in our opinion the appeal should be dismissed with costs.

The loan and mortgage transaction

6 The respondent was the trustee of funds under a complex scheme for providing loans from pooled funds. The scheme was administered by a manager, Australian Mortgage Securities Ltd (“AMS”), and a mortgage manager then named Mortgage Asset Management Pty Ltd (“MAM”) which distributed and serviced loan products.

7 In October 2003 the appellant completed an application for a loan of $432,000 on the security of the property. The stated purpose of the loan was to re-finance an existing mortgage taken by the appellant and his former wife, to purchase the interest of his former wife in the property and to undertake improvements to the property.

8 The application was submitted to MAM by a broker on the appellant’s behalf. It was accompanied by a valuation of the property at $540,000, prepared at the instigation of the appellant by a valuer at Megaw & Hogg (“the valuer”).

9 On 7 November 2003 the appellant was told by the broker that the loan had been approved in principle, and of the indicative terms and conditions. The respondent was identified as the lender. The appellant signed and returned the broker’s letter by way of acknowledgement and confirmation that he wished to proceed.

10 AMS instructed Turnbull Hill, solicitors, to document and settle the loan and mortgage in accordance with the AMS Solicitors Pack (“the Pack”). The Pack contained the terms on which firms of approved solicitors, including Turnbull Hill, were engaged.

11 Turnbull Hill prepared a letter to the appellant dated 12 November 2003. It enclosed for approval, and if approved for signature, a number of documents, relevantly –

“Loan Contract including Declaration by Borrower & Borrowers Acknowledgement (x 2)”
“Terms and conditions x 1 (to be retained by the Borrower/s)”;
“Mortgage x 1”; and
“Memorandum No 2584554 x 1 (to be retained by the Borrower/s)”.

12 Following the listing of the documents the letter stated, “The submission of the above documents does not comprise and is not intended as an agreement to lend”.

13 The loan transaction was a provision of credit to which the Consumer Credit Code (“the Code”), a law of New South Wales pursuant to the Consumer Credit (New South Wales) Act 1995 (“the Credit Act”), applied. In relation to the document in the first dot point above the letter advised that, in order to comply with the Credit Act and regulations thereunder, borrowers “must initial all pages of one (1) Loan Contract and the Borrowers Acceptance and either the Declaration by Borrower or Borrowers Acknowledgement of the Terms and Conditions and return to us”. The Borrowers Acceptance was a page of the document headed “Acceptance of Borrower”.

14 The first eight pages of the Loan Contract bore the heading “Loan Agreement”, and we use that description for those pages. The appellant described them as a pre-contractual statement. Beneath the heading was “Our Offer”, and the document then expressed an offer to the appellant of “a loan contract on the terms and conditions set out in this Loan Agreement and the additional terms and conditions contained in the document titled ‘Terms and Conditions’ … enclosed … “. It then said -

“ 1. Acceptance
If you want to accept this Loan Agreement, you must sign and return to our solicitors the original copy of this Loan Agreement so that it is received by our solicitors within 14 days of the date of this Loan Agreement (or such longer period as we may approve). If you do not accept this Loan Agreement within this time period, we can withdraw it.”

15 Detailed terms and conditions were set out, including that there was to be security in the form of a registered first mortgage over the property.

16 The Acceptance of Borrower began -

“If you want to accept the offer to enter into a Loan contract on the Terms and Conditions set out above, please sign in the space provided below and deliver it to Turnbull Hill Lawyers. If you do not accept this offer within 14 days of the date of this offer, we can withdraw it.”

17 It went on to urge that the contract document be read and understood before it was signed, and said that “once you sign this contract document you will be bound by it”.

18 The Borrowers Acknowledgement included that the borrower had read and understood “the nature and effect of the Loan Contract and the Security referred to in the Loan Contract” and had received “a copy of the terms which will apply to my Mortgage”.

19 We will return to some other aspects of the documents when considering grounds of appeal which concern them. For the present, it is sufficient to note that the loan agreement was signed by Ms Michelle Dixon, an employed solicitor at Turnbull Hill. Her signature of the loan agreement was prominent in the appellant’s submissions challenging its validity or enforceability.

20 The appellant attended at the offices of Turnbull Hill and received the letter by hand. He took the documents away. He initialled the loan agreement at the foot of each of its eight pages. He signed each of the Acceptance of Borrower and the Borrowers Acknowledgment which followed those pages, and dated them 13 November 2003. He signed the mortgage before a justice of the peace. The initialled and signed documents were returned by him to Turnbull Hill.

21 Appropriate steps were taken towards settlement of the loan and mortgage transaction. Settlement took place on 2 December 2003. The appellant attended to settlement in his capacity as a solicitor, acting for himself and as agent for Turnbull Hill. The appellant received the loan of $432,000.

22 The mortgage was signed by Mr Ashleigh Powter, a solicitor employed at Turnbull Hill, as solicitor for the mortgagee certifying correctness for the purposes of the Real Property Act 1900. In due course it was registered.

Events thereafter

23 Only brief mention is necessary, since the issues on appeal were concerned with the validity and enforceability of the loan agreement and the mortgage, and not with default or enforcement.

24 The mortgage provided for payment of interest only for the first five years and payment of interest and capital reductions thereafter. The interest payments were initially made, but the appellant fell into default. No payment was made after April 2006.

25 There was correspondence, in the course of which the appellant declined proposals by the respondent to vary his repayment obligations.

26 The loan agreement and mortgage provided that, in the event of default, the respondent could call up the whole of the loan and was entitled to possession of the property. Appropriate notices were served. The respondent brought its proceedings on 31 October 2006.

27 The proceedings were heard over five days in March 2009. Judgment was given and orders were made on 20 April 2009.

The grounds of appeal

28 Nineteen grounds of appeal were maintained. Some grounds were abandoned and some of the maintained grounds were as amended pursuant to leave granted at the hearing of the appeal. For reasons given at the time, leave otherwise to amend the grounds of appeal was refused. An application to tender further evidence on appeal was also refused.

29 The grounds of appeal fell into four categories, although there was some lack of clarity and overlap. It was often not easy to relate the appellant’s submissions to the grounds of appeal, or indeed to understand the grounds or the submissions in support of them.

30 The first category was denial of procedural fairness, in grounds 1 and 21 -

“1. The learned trial judge erred in denying the request by the appellant for adjournment of the trial, thereby forcing the appellant into a prejudicial hearing and denying the appellant natural justice. Crucial evidence was received late from the respondent 4 days before the trial date. Further crucial evidence was produced by the respondent during the trial, and the appellant was further prejudiced. (see judgment 23.3.09 para 1, and the statement of issues as presented to the trial judge).”
“21. The learned trial judge erred by allowing the trial to commence contrary to the Civil Trials Bench Book and not observing the treatment applicable to unrepresented litigants, thereby prejudicing the appellant and denying the appellant natural justice. The appellant was further prejudiced by the trial judge allowing very late production of two parcels of evidence from the respondent. Firstly received one working day before the trial and produced on the morning of the trial, to be admitted into evidence. Secondly, with further new evidence produced by the respondent at the end of day two of the trial being Exhibits D, E, F, G and H. (Civil Trials Bench Book – Preliminary – Unrepresented Litigants 1-0810, 1-0820). The appellant was effectively subjected to ‘trial by ambush’.”

31 The amended grounds of appeal filed by the appellant pursuant to the leave granted at the hearing included in ground 21, after the reference to Exhibits D, E, F, G and H, the sentence “The appellant was also surprised and prejudiced by the late introduction into evidence of Mr John Teague.” Leave to amend to include that sentence had been refused.

32 The second category was error in an evidentiary ruling, in ground 4 -

“4. The learned trial judge erred by allowing evidence to continue being produced, and stating there was not inherent unfairness, after the appellant requested its rejection pursuant to sections 135 and 136 Uniform Evidence Act NSW 1995. (judgment 23.3.09 re 135 of UEA)”

33 This ground may have been intended to assert denial of procedural fairness, and we will deal with it also in that connection.

34 The third category was error in relation to the validity or enforceability of the loan agreement, in grounds 5, 6, 7, 8, 9, 11, 16, 17, 22, 24, 26 and 28 -

“5. The learned trial judge erred in finding the 8 page pre-contractual statement (PCS) was in fact 10 page contract [sic], by assuming facts about the evidence, resulting in the judge ruling the existence of a contract. This is contrary to the judge’s role as an impartial and unbiased fact finding, and contrary to the evidence in the trial. (judgment 20.4.09 para 13, 14 and 21)”

“6. The learned trial judge erred in failing to take into account section 54A Conveyancing Act NSW 1919. The evidence revealed any signature was unauthorised (judgment 20.4.09 para 20 and 21)

“7. The learned trial judge erred in holding a deed of agreement is not necessary for the purposes of securing property for the Real Property Act NSW 1900, contrary to exhibit M (judgment 20.4.09 para 15) The loan agreement (pre contractual statement) was not a secured agreement or a registrable instrument. (section 36(11) Real Property Act NSW 1900).”

“8. The learned trial judge erred in finding that the witness Michelle Dixon was authorised, by John Teague, to sign on behalf of the respondent Permanent Custodians, contrary to the Solicitors pack of instructions. That states in exhibit ‘G’ at 3.1 a list of the authorised signatories with copies of their signatures had to be provided (judgment 20.4.09 para 23) which was never produced by the respondent at the trial. (Exh Note AL-3 page 1, does not permit or instruct signing documents).“

“9. The learned trial judge erred in misapplying the law of agency. The evidence indicated any delegation was void and invalid, and ratification did not apply to a void and invalid act. No ratification ever took place, within the 14 days allowed by the ‘loan agreement’, or at all, regarding Ms Dixon signing the ‘loan agreement’. His Honour stating ‘Ms Dixon’s evidence that she was authorised by a partner of Turnbull Hill to sign when required is uncontradicted’ is challenged as being erroneous with the evidence (judgment 20.4.09 para 23)”

“11. The learned trial judge erred by finding the alteration and insertion of the word ‘per’ by the solicitor Michelle Dixon for the respondent, after the appellant had initialled, did not alter the loan agreement (exhibit ‘A’) or its validity. Exhibit ‘1’ the other loan agreement was never altered. (Judgment 20.4.09 P 10 para 24,26)”
“16. The learned trial judge erred by rejecting estoppel in the trial where the respondent, in writing, indicated the PCS was ‘not an agreement to lend or intended to be an agreement to lend’. (Judgment 20.4.09 para 12) Transcript p 98 line 38-41. Estoppel also applies regarding stating the respondent ratifying any signatures.”
“17. The learned trial judge erred by finding the appellant was bound by the PCS when in fact the PCS was unsigned, unclear, and preliminary to a formal contract. (exhibit A and 1). There were two PCS’s which are fundamentally different and demonstrate the uncertainty as to whether either was legally binding. The PCS is not a secured agreement or not a registrable instrument.”
“22. The learned trial judge erred by not taking into account important evidence whereby no instructions were provided to the solicitors for the respondent to sign documents, however Michelle Dixon went ahead and did sign. Consequently no contract was ever completed or offered. (Affidavit of A Laubham (plaintiff) sworn 21.8.2008 – exhibit note AL-3 page 1; transcript p 90 line 11-23.)”
“24. The learned trial judge erred by rejecting the relevance of the Civil Liability Act NSW 2002 section 5O and 5Q. (transcript Page 196 line 34 to 50 and page 197 lines 1 to 43) The negligence of the solicitor (Messrs Turnbull Hill) for the plaintiff fall within the ambit of the Civil Liability Act, in as much as they ignored and disobeyed their agency agreement with the respondent. John Teague was not permitted, or authorised to delegate to Michelle Dixon.”
“26. The learned trial judge erred by accepting ‘per’ was acceptable for the purposes of defining her capacity to sign the loan agreement. Whereas this failed, as it should have been ‘as agent for’, or as company officer. This contravenes 51A Conveyancing Act 1919 NSW. Per procurationem is not applicable as the signatory was signing allegedly as a company officer of the respondent.”
“28. The learned trial judge erred in finding that the witness Michelle Dixon was competent to sign, when in fact she signed as an officer of Permanent Custodians Ltd, which she was not. The form of the loan agreement purports that it is to [be] executed only by a company officer, however Michelle Dixon was not a company officer, and therefore no binding contract arose. His Honour misdirected himself and erroneously held that Michelle Dixon was competent to sign. Michelle Dixon was not a company officer, but signed as such.”

35 It will be noted that ground 5 also appeared to assert bias; we will deal with that matter also. Ground 7 was particularly obscure. We include it in this category, although its place may have been in the next category.

36 The fourth category was concerned with the validity or enforceability of the mortgage, in grounds 13, 18, 19 and 25 -

“13. The learned trial judge erred in finding that the mortgage AA281799W was lawfully signed by Ashleigh Powter on behalf of the respondent Permanent Custodians. This was contrary to the Solicitors pack of instructions which states in Exhibit ‘G’ at 3.1 and 3.5.4 and 3.5.5 and Ex Note AL-3 page 1, that a list of the authorised signatories with copies of their signatures had to be provided. (judgment 20.4.09 para 19) which was never produced by the respondent at the trial. No evidence existed for his Honour to make that finding. The non delegation rule of agency has been breached. (Transcript page 178 lines 23 to 50 and 179 lines 1 to 18, Exh Note AL-3 page 1, does not permit or instruct signing documents.)”

“18. The learned trial judge erred by finding the memorandum 2584554Q was enforceable for possession at clause 15, contrary to the evidence. This was filed at the LTO, however, was not the appellant’s memorandum, but from seven years earlier and from an unrelated matter. (J 20.4.09 p 10-11 para 24, 28) Section 80A RPA 1900 does not apply to a memorandum that one else’s [sic].”
“19. The learned trial judge erred by finding the mortgage AA281799 secured the debt, whereas the mortgage secured nothing. The schedule prevailed over any memorandum and the schedule did not detail or mention any debt or details of any agreement or any covenant. Nothing is expressly incorporated. Any alleged debt was a personal covenant, not a charge on land, and not capable of being a charge on land. The mortgage contained no covenant to substantiate any debt owing. No indefeasibility of title existed.”
“25. The learned trial judge erred by finding the alteration and amendment of the mortgage by the solicitor Ashleigh Powter, after the appellant had signed, did not alter the document or its validity. (Judgment 20.4.09 P 10 para 19) The mortgage was also in breach of:
i) Real Prop. Regulation Schedule 2 points 10(1) and (2), and (11),
ii) Sections 23C, 38, 51A, 163(2) Conveyancing Act 1919 NSW, and
iii) Sections 26(11) and 117 RPA 1900 NSW and
iv) clause 21 of the memorandum (relating to 117RPA).”

37 At trial the appellant claimed that he did not receive the terms and conditions said to have been enclosed with the letter of 12 November 2003. The judge found to the contrary. No ground of appeal challenged that finding, but the submissions included the assertion, without development, that the terms and conditions were “not presented and unsigned”. The judge’s finding was plainly correct.

38 The appellant’s defence at trial included that the loan agreement was unenforceable because stamp duty had not been paid. The judge found that it bore the appropriate duty stamp. The appellant also contended at trial that he was not bound by the loan agreement because he had only initialled the pages, and had not placed his full signature on them. This rightly did not find favour with the judge, amongst other reasons because the Acceptance of Borrower referring to the “contract document” meant the loan agreement and the Acceptance of Borrower was signed in full. These matters were not raised on appeal, although as will be seen the initialling of the loan agreement was relied on for a different purpose (see the consideration referable to ground 5, below).

39 A number of other issues decided at trial, for example the claims in the cross-claim, were not challenged by a ground of appeal. As we have said, the issues on appeal were concerned with the validity and enforceability of the loan agreement and the mortgage.

40 The orders sought on appeal were inapt, but it is not necessary to describe them because the appeal is to be dismissed.

The procedural fairness grounds

41 The submissions under these grounds fell broadly into complaint of two refusals of adjournment and complaint of prejudice, particularly to an unrepresented litigant, through trial by ambush. It was not clear whether, with abandonment of ground 3 which complained of denial of the “right to consolidate”, the matter to which we first turn was maintained as a complaint of refusal of an adjournment. We assume in the appellant’s favour that it was.

42 The appellant had brought proceedings against the valuer, alleging negligence in the valuation of the property. On 16 March 2009, a week before the commencement of the hearing before Grove J on 23 March 2009, the appellant made a number of applications to Johnson J, the Possessions List judge. The applications included an application to vacate the hearing date, an application for a stay until the claim against the valuer had been heard and determined, and an application for an adjournment to enable an application for consolidation of the two proceedings. Johnson J refused the applications.

43 On 18 March 2009 a notice of motion was filed by the appellant in the proceedings against the valuer, in which he applied for an order for consolidation of those proceedings with the present proceedings brought by the respondent against him.

44 The notice of motion was returnable on 23 March 2009. It was referred by the Registrar to Grove J. At the commencement of the hearing, the appellant sought that the judge hear and determine the application.

45 The judge declined to deal with the application. He did so essentially because the valuer had not been given the notice required under the Rules and was not ready to proceed with the notice of motion. He said also that it was difficult to see why there should be consolidation, and continued -

“Be that as it may, it can be perceived that an inevitable consequence of making the orders sought by Mr Leybourne in the notice of motion filed last week would be to delay the hearing of the principal matter. Mr Leybourne has foreshadowed that he intends to make an application to adjourn the hearing of that action. In any event, as I understand it, the first matter was before Johnson J last week when he dealt with a number of claims by Mr Leybourne, including an application to vacate today’s hearing date, which was refused.”

46 The judge said that he did not “consider it appropriate to consider [the notice of motion] in the context of the long-standing fixture of the hearing of the first action with which I propose to proceed.”

47 The appellant’s submissions on appeal treated this as a request for adjournment of the trial. That was correct insofar as an adjournment would have been necessary if his Honour were to deal with the application, no doubt with a lengthy adjournment if he acceded to the application for consolidation.

48 It could be said that filing the notice of motion and seeking that the judge hear and determine the application was an abuse of process. The judge did not deal with the notice of motion in that manner. In any event, in our opinion, for the reasons that follow, no error has been shown in the course his Honour took.

49 The hearing had been fixed since November 2008. The application had been brought at the last moment, and Johnson J had earlier refused an adjournment. The judge saw no occasion for consolidation (Johnson J had also so held, and it appears that his reasons were provided to the judge at this time).

50 It was well open to the judge to doubt why the appellant’s proceedings against the valuer should be consolidated with the proceedings brought by the respondent against him.

51 As we understand it from the judge’s substantive reasons, the appellant’s position was that the true value of the property was much less than $534,000, and was less than the then amount of credit above which relief was not available under ss 67-69 of the Code on grounds of hardship (see s 66(3)). The appellant said that the true value was material both to his claim against the valuer and to his application for relief under those provisions of the Code, and under s 70 of the Code relating to unjust contracts and under the Contracts Review Act 1980 also relating to unjust contracts.

52 The materiality of the true value of the property to the ceiling for relief under the Code was misconceived, since the ceiling was the amount of credit provided and not the value of the property which was security for the loan. Conceivably, the value of the property could have been material to a claim of an unjust contract, although an incorrect valuation of itself would not result in injustice at the time the contract was entered into and much more would have to be established. (In fact, the judge held that the entry into the contract was not affected by any of the suggested sources of possible injustice.) But the common materiality was slight.

53 In our opinion, in the circumstances such degree of common materiality as there was could not have justified an adjournment with a view to consolidation of the two proceedings.

54 We note that the appellant has since discontinued his proceedings against the valuer.

55 We turn to the second complaint of refusal of an adjournment. It takes us also to alleged prejudice occasioned to an unrepresented litigant through what was said to be trial by ambush.

56 In the course of his opening, counsel for the respondent took the judge through the pleadings. There came a point when the appellant said that a reply filed by the respondent had raised new issues, and that he had been taken by surprise. He complained that he had had difficulty in ascertaining from the respondent the identity of the signatory to the loan agreement, in fact Ms Dixon, and that he had “only been informed of this past the eleventh hour” and “I would have thought that in itself was grounds for an adjournment of the trial”. He complained, “I am unrepresented, and it’s not right that I have to keep being tried, ambushed style approach”.

57 In the ensuing debate the following emerged. The appellant was informed on 4 March 2009 that the signatory of the loan agreement was Ms Dixon. In a further amended defence, filed on 18 March 2009 but apparently provided to the respondent at an earlier time, the appellant said that the loan agreement (in his description, the pre-contractual statement) had not been signed in accordance with s 127 of the Corporations Law, and had been signed by an unknown person for the respondent. This brought a reply, also filed on 18 March 2009 but dated 13 March 2009. The reply was given to the appellant at the hearing before Johnson J. In the reply, the respondent relied on Turnbull Hill’s actual or ostensible authority and on Ms Dixon’s position as an employed solicitor with the firm. Alternatively, the respondent pleaded that it had ratified Ms Dixon’s actions by advancing the loan.

58 The judge gave short reasons on what he described as renewal of the appellant’s application for an adjournment. After referring in brief to the matters in the preceding paragraph, although not in the detail above, and noting that the appellant said that it was “necessary for him to ‘track this matter’”, his Honour said -

“In the light of the multitudinous allegations and counter allegations which I have been able to observe thus far in the pleadings, I am not presently persuaded that it is necessary to adjourn the hearing, but I would specifically reserve to Mr Leybourne the right to renew such an application in the event that he can demonstrate he is suffering actual prejudice as a result of what has been pleaded. At the moment I am unpersuaded that grounds for adjournment have been shown. I reserve the leave, as I have indicated.”

59 The appellant did not thereafter apply for an adjournment because he was in difficulty in meeting the respondent’s case concerning Ms Dixon’s authority. Indeed, he did not thereafter apply for an adjournment at all, and we refer to the consideration below of the complaints of late production of evidence and production of further new evidence.

60 In our opinion, no error has been shown in the manner in which the judge dealt with what was seen as a further application for an adjournment. A generalised complaint of trial by ambush and the need to “track this matter” was not persuasive. The appellant had known Ms Dixon’s identity since early March and had had the reply for a week, and the need for extensive factual or legal investigation was neither self-evident nor explained to the judge (or to us on appeal). It was well within the judge’s discretion to proceed with the trial but reserve to the appellant the right to make a subsequent application upon demonstration of actual prejudice. That this was a sensible course is supported, after the event, by the fact that the appellant did not make any such application.

61 We turn then to the complaints of late production of evidence and production of further new evidence.

62 As we understand it, the evidence received four days before the trial was an affidavit of Ms Dixon sworn on 19 March 2009. It essentially exhibited the instructions received by Turnbull Hill from the respondent and some documents part of giving effect to those instructions, and confirmed her signature on the loan agreement.

63 On 24 March 2009 Ms Dixon was called and her affidavit was read. The appellant took no objection to it. The transcript records -

“DEFENDANT: I was wanting to take a little longer. My mind is swimming in a lot of things. I was originally understanding this witness was after lunch. I am asking for a moment to trim my thoughts.

HIS HONOUR: You want me to adjourn for a few moments?

DEFENDANT: Yes, your Honour.

HIS HONOUR: How long are you seeking?

DEFENDANT: 15 to 20 minutes, your Honour.

DOCKER: I don’t have any objection.

HIS HONOUR: We will resume at 11.30.”

64 The Court resumed and Ms Dixon was cross-examined by the appellant. In the course of the cross-examination he sought access to Turnbull Hill’s file “in respect to the Permanent Custodians general legal matter”. He was given access. He said that he needed some time to examine the file, and was given the time he asked for. The cross-examination continued. Ms Dixon concluded her evidence later that day.

65 The parcel of evidence received one working day before the trial, as we understand it, was the same affidavit of Ms Dixon.

66 The documents which became Exhibits D, E, F, G and H were produced and tendered on 25 March 2009. From what the appellant said at the time, they had been provided to him on the previous day. The documents which became Exhibits D, E and F were concerned with the trust and management structure under which the respondent operated as a lender, as to each of which the appellant said that he had “no realistic objection” and that while he had not fully acquainted himself with it he did not think it was highly controversial. The documents which became Exhibits G and H were the Pack and a list of approved solicitors. They were specifically not objected to, and the appellant said that they were “of interest” to him. In due course he relied on them for the submission that Ms Dixon did not have authority to sign the loan agreement.

67 The appellant submitted on appeal that this evidence was crucial, that he was “effectively ambushed and taken by surprise” and was “immeasurably prejudiced”, and that the judge “paid no attention to my plight and continued with the trial”. He said that he did not have sufficient time to “examine” Ms Dixon’s affidavit and that its production “was ambush and an affront to fairness and natural justice”, and that the Pack was provided to him after Ms Dixon had left the witness box which was “another example of the gross unfairness and prejudice that exists with this case and the lack of natural justice within the trial”.

68 However, Ms Dixon’s affidavit followed from the appellant’s contest, in his amended defence earlier in March, over the signing of the loan agreement. Her evidence could not have been unexpected. There was no protest at the time (indeed, the appellant seemed to welcome the tender of the Pack and the list of approved solicitors). The appellant did not ask that Ms Dixon be recalled. He did not take up the opportunity reserved by the trial judge to apply for an adjournment if he were prejudiced. There is no substance in these complaints.

69 We turn then to ground 21 so far as it was complained that the appellant was not treated as an unrepresented litigant. That complaint was voiced on a number of occasions in the hearing of the appeal, not only in relation to this ground of appeal.

70 The judge’s substantive reasons included -

“2. The defendant has represented himself in the proceedings. The evidence shows that at the relevant time of obtaining the loan the defendant was in practice as a solicitor and it was accepted that he remains the holder of a current practising certificate. He has stated that he has no particular expertise in conveyancing nor in civil litigation of this nature. I see no reason not to accept his assertions in those regards ... .”

71 It emerged in the hearing of the appeal that the appellant had been a solicitor for 15 years. He practised in the District Court and the Local Court. He had conducted litigation over those years, especially in the Local Court, and conceded that he “may not be in the same situation as absolutely a lay person”. But he said that his experience lay as a criminal lawyer, not in civil proceedings.

72 From the transcript, it is apparent that the appellant’s conduct of his defence and cross-claim at the trial was not that of a practitioner accustomed to conducting civil proceedings. He was of course entitled to procedural fairness. In our opinion, however, it is not correct that the appellant was to be treated as an unrepresented litigant. A solicitor with a modicum of experience in litigation would be expected to appreciate the issues, to be able to cross-examine and to deploy evidence in meeting the opponent’s case and making out his own case, and to be familiar with court procedures in those respects. Experience as a criminal lawyer was readily translated to civil litigation.

73 The judge did not fail to afford procedural fairness appropriate to the appellant’s position, and the complaint of failure to treat him as an unrepresented litigant was also without substance; it should not have been included in ground 21.

The evidentiary ruling ground

74 The first witness in the respondent’s case was Mr Alan Laubhan. He was the manager of the respondent’s collection branch. His evidence in chief was contained in affidavits sworn on 6 February, 31 July and 21 August 2008 and 20 March 2009 and exhibits to the affidavits. There was no objection by the appellant to the first three affidavits. There was no objection to the 20 March 2009 affidavit, but a rather unclear submission that, because of its recency, some time might be needed to deal with its content. In fact, no request for time was subsequently made.

75 The principal affidavit was that of 6 February 2008. Mr Laubhan annexed copies of a number of documents from the respondent’s files, including the loan agreement and other documents mentioned earlier in these reasons, and documents concerning default and the amount of indebtedness.

76 Early in cross-examination the appellant established that Mr Laubhan had first been employed within the respondent’s organisation in October 2007; hence his evidence of prior events and the documents came from the files of the respondent.

77 After some further cross-examination, the appellant applied for an order that Mr Laubhan’s evidence as to events prior to October 2007 should be excluded. He referred in that connection to ss 135 and 136 of the Evidence Act 1995. In the development of the application only s 135 was taken up, with submissions to the effect that the probative value of the evidence was minimal, and was substantially outweighed by the danger of unfairness to the appellant because Mr Laubhan’s evidence was hearsay and the appellant could not cross-examine “the correct witness” who had been in charge of the file prior to 2007. It is evident that the appellant’s principal concern was entry into the loan agreement, which on his case had not been validly made.

78 The judge refused the application, relevantly saying -

“As is apparent from Mr Laubhan’s affidavit, the evidence that he is giving is based not only upon his own knowledge, but his familiarity with the records of the relevant corporation. Mr Leybourne has repeatedly complained that this evidence is therefore hearsay. These are business records being put before the Court through an officer who has testified that he is authorised to make this affidavit and various other affidavits on behalf of the plaintiff. There is no inherent unfairness in that being done. The witness in fact is not being called by the plaintiff to give firsthand evidence of his involvement in the entry into the original agreement. He is here to give evidence in relation to the records of the company and also the records showing the default pursuant to the agreements which are exhibited to his affidavit. There is no basis upon which I should exercise my powers pursuant to s 135 or s 136, or any other basis, in order to exclude the evidence thusfar given.”

79 Section 135 of the Evidence Act is concerned with exclusion of evidence. Section 136 is concerned with limitation on its use. The application was for exclusion, and the appellant’s reference to s 136 was either misconceived or an unexpressed application for an unstated limitation on the use of Mr Laubhan’s evidence.

80 The judge did not in terms address and weigh probative value and danger of unfair prejudice to the appellant in relation to s 135. Nor did his Honour address the danger that particular use of evidence might be unfairly prejudicial to the appellant in relation to s 136. However, there could be no objection to admissibility so far as the business records contained previous representations. Indeed, the application invoking s 135 or s 136 presupposed the material would otherwise be admissible. The evidence from the respondent’s files had undoubted probative value, although plainly not excluding the appellant’s contentions as to the validity and enforceability of the loan agreement and the mortgage. Admissibility of the loan agreement initialled by the appellant with the signed Acceptance of Borrower was not affected by the hearsay rule.

81 The judge then assessed the danger of unfair prejudice in saying that there was no inherent unfairness in the business records being put before the Court through Mr Laubhan, and explaining that statement in the following sentences.

82 Any prejudice must be unfair prejudice, and there is not unfair prejudice merely because evidence supports the opponent’s case. It has been said that inability to cross-examine the maker of a representation can constitute unfair prejudice (Bakerland Pty Ltd v Coleridge [2002] NSWCA 30 at [55]; Longhurst v Hunt [2004] NSWCCA 193; (2002) 130 A Crim R 256 at [93]-[97]; R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182 at [126]-[127]; Galvin v R [2006] NSWCCA 66; (2006) 161 A Crim R 449 at [40]; but see Papakosmas v The Queen (1999) 186 CLR 297 at [93] per McHugh J). But it depends on the facts, including the nature of the evidence, the issue to which the evidence goes and other evidence going to that issue. As to the loan agreement, as we have said its admissibility was not affected by the hearsay rule.

83 The judge said that Mr Laubhan was not giving first-hand evidence of his involvement in the entry into the loan agreement; implicitly, the contest over the validity and enforceability of the loan agreement, and of the mortgage, remained to be decided on other evidence. Through Mr Laubhan’s affidavit the loan agreement was properly put into evidence, without any question of previous representation. There was no contest over the fact that the document was initialled and signed by the appellant and signed by Ms Dixon. The contest as to its validity or enforceability lay elsewhere.

84 The appellant did not explain how there was danger of unfair prejudice in the course permitted by the trial judge, beyond the submission that he was not given the opportunity of cross-examining “the correct witness”. In the respondent’s case, the provision of the loan agreement, and the mortgage and other documents, to the appellant, and their return signed by the appellant, did not need evidence from whoever had had the file prior to October 2007; nor was it evident, or is it now evident, how cross-examination of whoever had the file prior to October 2007 could have contributed to the appellant’s case. The contest lay in the efficacy of Ms Dixon’s signature, and it must have been understood that Ms Dixon would be giving evidence and could be asked to explain the circumstances in which she signed the loan agreement. The contest lay within the documents and, on the appellant’s case, her authority.

85 The judge could more fully have considered the application of ss 135 and 136, but in our opinion no appealable error has been shown in the evaluation expressed in the terms that there was no inherent unfairness in putting the respondent’s business records before the Court through Mr Laubhan. We add that we are not satisfied that some substantial wrong or miscarriage was occasioned by the judge’s ruling: UCPR Pt 51 r 53.

86 We have said that this ground may have been intended to assert also a denial of procedural fairness. The appellant’s submissions included that the admission of the evidence of Mr Laubhan was “manifestly unfair and unjust” and that he “was being ambushed by the unfair evidence of Mr Laubhan”, possibly as a submission independently of his reliance on ss 135 and 136. It is sufficient to say that in our opinion there is no basis for a complaint of denial of procedural fairness.

The grounds concerning the validity or enforceability of the loan agreement

87 The submissions made by the appellant in this category of the grounds of appeal were often not clearly referable to individual grounds. Our distillation of the submissions is as follows; the order in which we deal with them is also ours.

88 The appellant submitted that the judge erred in finding that the eight page loan agreement (which he described as a pre-contractual statement) was “conveniently attached” (the appellant’s words: the judge said attached) to the Acceptance of Borrower, and that his Honour “had no right in electing to join them and declaring the existence of a contract”. We believe that this was the “assuming facts about the evidence” referred to in ground 5. The appellant submitted that his Honour should have held that the evidence was unclear and uncertain, and that the respondent “has not established the pages constitute a contract”.

89 The submission related to the judge’s response to a submission that, at the time the appellant initialled the pages of the loan agreement, the Acceptance of Borrower, which he signed, was not attached. It was the appellant’s position that he initialled what he said was no more than the pre-contractual statement required by s 14 of the Code by way of acknowledgement of receipt. His submission sought to divorce it from the acceptance signified by his signature of the Acceptance of Borrower.

90 The judge noted that the appellant tendered no evidence that that the Acceptance of Borrower was not attached. He said that he was satisfied from the covering letter referring to both documents; from the Acceptance of Borrower referring to the terms and conditions “set out above” which sensibly referred to the initialled pages; from the request to initial in the letter and pencilled Xs where the appellant did initial; and from the acknowledgment in the Acceptance of Borrower signed by the appellant that he had read and understood the nature of the loan contract and the security, that the pages were all presented together and the initialling and signature occurred together.

91 In our opinion, no error in the judge’s fact-finding has been shown. Indeed, the finding was soundly based on the evidence and was inevitable. There was no question of impartiality or bias. That allegation should not have been included in ground 5.

92 The foregoing also relates to the submission, as we have foreshadowed, that there was no loan contract because the loan agreement provided with the letter of 12 November 2003 was no more than the pre-contractual statement required by s 14 of the Code: see in particular ground 17. The fundamental difference to which ground 17 referred, as a reason for giving this character to the document, was a “per” appearing on the eight pages of the loan agreement initialled by the appellant, but not on another copy of the loan agreement.

93 At this point we say more the signature of the loan agreement by Ms Dixon, including the “per”. The “per” comes up again in other submissions of the appellant.

94 We have said that the loan agreement was signed for the respondent by Ms Dixon. In Exhibit A tendered by the respondent the signature took the form -

“[signature]
per Permanent Custodians Limited
by an authorised officer”

The “per” was in manuscript; the remainder, apart from the signature itself, was typed.

95 Exhibit 1 tendered by the appellant, a copy of the loan agreement but without the Acceptance of Borrower and Borrower’s Acknowledgement, was signed by Ms Dixon in the same form save that the “per” was absent. Exhibit 1 was not initialled by the appellant. The appellant gave no evidence concerning it, or at all, but treated it as the second copy of the loan agreement enclosed with the letter of 12 November 2003.

96 The appellant cross-examined Ms Dixon to suggest that the “per” was added by her to Exhibit A after she had first signed the loan agreement, and after he (the appellant) had initialled the document. Ms Dixon accepted that she wrote “per” on one document but not the other, but could not say why or whether she wrote the “per” after the appellant had initialled the loan agreement.

97 Returning to the submission, there is nothing in it. A pre-contractual statement could mature into a contract – indeed, s 14(5) of the Code states that the pre-contractual statement “may be the proposed contract document or be a separate document or documents”. Initialling of the pages of the loan agreement and signature of the Acceptance of Borrower and their return, by way of acceptance of the respondent’s offer, constituted the entry into a contract, as the judge correctly held. There was no uncertainty because of the “per”. It did not affect the terms of the contract.

98 There was an allied submission, that the “per” was added after the appellant’s initialling of the loan agreement and that this vitiated any contract – see in particular ground 11. The appellant submitted that it was “an alteration of a serious kind”, because it sought to change the status of Ms Dixon from a stranger to the transaction to a person acting on behalf of the respondent. He appeared to submit both that the alteration in some manner showed that Ms Dixon had not in truth been authorised to sign on behalf of the respondent, and that the alteration itself vitiated any contract otherwise entered into.

99 In the latter connection, the appellant referred to s 17 of the Code, which provides that an “alteration of” a contract document by the credit provider is presumed to be ineffective unless the debtor signs or initials in the margin opposite the alteration. He referred also to a provision of the Pack which stated the same thing.

100 The judge did not find whether or not the “per” was on the loan agreement initialled by the appellant at the time he initialled it. He recorded his understanding that the appellant contended that the addition of the word “per” must have been to obscure the fact that Ms Dixon was not an officer of the respondent, and that the appellant sought to draw the inference that she was therefore not a solicitor authorised to sign. His Honour said that the addition of the word “per” did nothing to add to or detract from the obligations entered into by the parties “nor does it operate to render the agreement in some way unenforceable”.

101 The appellant asserted in his submission that the “per” was added after he initialled the loan agreement, although that had not been found. Absent evidence from the appellant, we do not see why it should be inferred that the “per” was not on the loan agreement when he initialled it. Ms Dixon may simply have put it on one copy but, by a slip, not on the other, before the two copies accompanied the letter of 12 November 2003. The appellant could have given evidence to establish the inference, but did not.

102 Be that as it may, in our opinion the judge was correct. Nothing as to Ms Dixon’s authority could be drawn from the presence or absence of the “per” – either Ms Dixon could sign as she did or she could not, and presence or absence of a “per” did not affect the answer to that question. The general law concerning alteration to documents need not be considered. The rule in Pigot’s case (1614) 11 Co Rep 26b; 77 ER 1177, one of alteration to a deed, has been applied to other written instruments, but the modern cases doubt the present justification for the rule and consider fraudulent intention in the alteration to be of importance: Warburton v National Westminster Finance Australia Ltd (1988) 15 NSWLR 238; Armor Coatings (Marketing) Pty Ltd v General Credits (Finance) Pty Ltd (1978) 17 SASR 259. On any view, the alteration must be material: Farrow Mortgage Services Pty Ltd (In Liq) v Slade & Anor (1996) 38 NSWLR 636 at 639; Iannello v Sharpe [2007] NSWCA 61; (2007) 69 NSWLR 452. Assuming that “per” was added to the loan agreement initialled by the appellant after he returned it to Turnbull Hill, it was not a material alteration.

103 It may be added that, it had been a material alteration, the term in the Pack as between the respondent and Turnbull Hill did not have any force as between the respondent and the appellant. By force of s 17 of the Code, the alteration would have been ineffective in relation to any contract, and therefore if there were otherwise a written agreement the addition of the “per” would have done nothing.

104 The appellant made submissions based on the statement in the letter of 12 November 2003, following the listing of documents, that “The submission of the above documents does not comprise and is not intended as an agreement to lend”. The submissions were to the effect that the statement showed that there was no intention to create legal relations and (presumably separately) that by making the statement the respondent was estopped from contending that a legally binding contract had come into existence (see in particular ground 16). With a link to grounds considered below, it was also said that the statement demonstrated that there was to be another document: in the appellant’s submission, in the form of a deed executed as required by s 38 of the Conveyancing Act 1919.

105 The judge correctly held that, by the appellant’s initialling and signing and return of the documents and the settlement of the transaction, the parties entered into legal relations. No doubt as a precaution, the Turnbull Hill letter made clear that the submission of the documents by itself did not give rise to an agreement to lend. The submission was an offer, and no more. But a contract of loan could come about if the documents were signed and returned, as was invited, by way of acceptance of the offer. That is what happened. Estoppel does not arise. There is nothing in these submissions.

106 The appellant made submissions concerning the manner of Ms Dixon’s signature of the loan agreement, including and apart from the “per”. Underlying the submissions, as with the question of Ms Dixon’s authority to which we will come, was that a binding and enforceable loan agreement as between the appellant and the respondent required that Ms Dixon sign the loan agreement in a manner binding the respondent to a contract of loan. For the present we will assume that that is correct.

107 The submissions were particularly difficult to understand. They appeared to involve grounds 6, 7 and 26 and 28.

108 One submission was that, by the operation of s 51A and s 38 of the Conveyancing Act, Ms Dixon’s signature of the loan agreement had to be witnessed. As best we understand it, the appellant said that s 51A(3) required that the loan agreement be executed as a deed and s 38 then applied to require witnessing. It appeared to be part of the submissions that, because Ms Dixon signed purportedly as an authorised officer of the respondent, requirements for execution of documents by corporations had to be obeyed, and there was reference to ss 126 and 127 of the Corporations Act 2001, although at other times it was submitted that Ms Dixon could not sign as an officer of the respondent.

109 Section 51A is not relevant. Ms Dixon was not exercising authority under a statutory or other power to assure any property in the name or on behalf of a corporation sole or aggregate, and in any event was not executing a deed.

110 Associated with this, and perhaps involving ground 7, was a submission submitted that the loan agreement had to be in the form of a deed; although ground 7 may have been directed to the different question of whether the mortgage secured anything (see below).

111 Exhibit M to which ground 7 refers was a letter to the appellant from his bank concerning the mortgage to be re-financed, and the reference to it appears to be an error. We do not understand what exhibit the appellant intended. The paragraph of the judge’s reasons to which the ground refers is -

“15. The defendant submitted that, in any event, the Loan Agreement on its face was not executed in accordance with the requirements for execution of a deed. There is no obligation for an agreement of this kind to be implemented by deed. The circumstance that a loan agreement was constituted by a deed in a case referred to by the defendant ( Provident Capital Limited v Printy [2008] NSWCA 131) does not establish that a deed is obligatory in order to render a loan agreement enforceable.”

112 The submissions referable to ground 7 included that Provident Capital Limited v Printy [2008] NSWCA 131; 13 BPR 25,199, is “authority to substantiate the need for a deed”. In this respect the submissions included that in that case the loan agreement was in the form of a deed, and it was said -

“When the ‘agreement’ is needed to provide the details and conditions for a secured mortgage, the agreement should be in the registrable form of an instrument. Con. Act 1919 sections 23C and 38. Section 36(1)(D)(b) [sic] RP Act requiring witnessing and 36(11) deeming the Reg’d mortgage to be a deed.”

113 It was also submitted that certain pages in the transcript were “proof of the need for the registered documents to be in the form of a deed”. The apparently relevant part of the pages was the following submission made by the appellant at trial -

“Returning to exhibit M, that is a registrable deed complying with the sections I have indicated and that is a binding agreement and I don’t say otherwise. I didn’t even remember that until I was shown it. That really authenticates what I say and a good example is from the National Australia Bank deed identifying the deed of agreement registrable whether not registered itself and if it is not and if the mortgage was properly identified, this may fall into the realm of an all moneys mortgage but secured. I say that document authenticates what I say, that that is a deed for the purposes of securing real property.”

114 The submissions are nonsense. Section 36(1D)(a) of the Real Property Act is concerned with witnessing a dealing; s 36(11) gives a registered dealing the effect of a deed duly executed by the parties who signed it. Neither had anything to do with signature of a contract of loan; if the submissions were in connection with the mortgage, the loan agreement was not by association deemed to be a deed, let alone required to be executed as a deed. Section 23C of the Conveyancing Act is not relevant. The judge correctly held that there was no necessity that the loan agreement be in the form of a deed.

115 Another submission was that s 54A of the Conveyancing Act required that the signature of the loan agreement by Ms Dixon be “lawfully authorised”, and that it was not. Section 54A(1) makes unenforceable any contract for the sale or other disposition of land or any interest in land unless the agreement or some memorandum or note thereof is in writing “and signed by the party to be charged or by some other person thereunto lawfully authorised by the party to be charged”. The only possible application of s 54A(1) would be if the respondent brought proceedings against the appellant upon an agreement by him to grant a mortgage over the property, which would require signature of a written agreement or a memorandum or note thereof by the appellant or a person authorised by the appellant. Section 54A has nothing to do with signature of the loan agreement by Ms Dixon.

116 The appellant made many submissions concerning the authority of Ms Dixon to sign the loan agreement. It was again particularly difficult to understand some of the submissions, which fell broadly within grounds 8, 9, 22, 24 and perhaps 26 and 28.

117 We describe at this point evidence concerning Mr John Teague. The appellant was cross-examining Ms Dixon. He asked what was her understanding of her authority in signing the loan agreement. She answered that she had heard the partner in charge of Turnbull Hill’s mortgage department, Mr Teague, “instruct me that as an employed solicitor I was entitled to sign the loan agreements and may be called on from time to time to sign those agreements if he or the other solicitors working at the department were unavailable.” By her answer to the next question, she confirmed that that was what Mr Teague had told her.

118 On our understanding, the thrust of the submissions was to the following effect. The respondent engaged Turnbull Hill as one of its approved solicitors on the terms of the Pack. The terms included that, prior to acceptance as approved solicitors, Turnbull Hill provide a list of authorised signatories with copies of their signatures, and that the firm certify that matter annually. The terms also provided that an authorised signatory of the approved solicitors was to sign the loan contract and mortgage documents as an authorised officer of the respondent. Mr Teague was an authorised signatory, but Ms Dixon was not. Mr Teague could not delegate his authority. The signature of the loan agreement by Ms Dixon was without authority, and therefore no loan contract came into existence. Purportedly signing “per” the respondent did not cure this, as Ms Dixon was not an officer of the respondent. Rather, her purported signing as an officer of the respondent meant that signature by her otherwise as agent for the respondent could not be found.

119 The part of the judge’s reasons most directly dealing with submissions apparently to similar effect was -

“23 The AMS Solicitors Pack makes provision for authorized signatories. PCL does not assert that it is not bound by what Ms Dixon signed on its behalf, quite the contrary. The case referred to by the defendant, Pianta v Nation Finance & Trustees Limited (1964) 180 CLR 146 concerned parties who did not wish to be bound by what their solicitor had done. As I have said, PCL accepts that it is bound by what Ms Dixon signed. Turnbull Hill is an AMS panel solicitor. It is for them to provide AMS the details concerning any solicitor “working on AMS matters”. Ms Dixon’s evidence that she was authorized by a partner of Turnbull Hill to sign when required is uncontradicted. There is no basis upon which the defendant can assert that he is not bound because of some lack of authority on the part of Ms Dixon. Were it necessary to turn to it, the ratification by the plaintiff of what she had done is indisputable. Ms Dixon did not sign in the capacity of an officer of a corporation and references to statutory provisions in that respect are irrelevant.

24 The pro forma of the loan agreement has a printed space for signature underscored as “Permanent Custodians Limited by an authorized officer”. The authority of a solicitor of an approved firm to sign is manifest in the terms of the Solicitors Pack. Ms Dixon has written the word “per” in front of the printed word “Permanent”. She does not recall whether she wrote that at the time she signed or later. As I understand the defendant, he contends that the addition of the word “per” must have been to obscure the fact that Ms Dixon was not an officer of PCL and he seeks to draw the inference that she was therefore not a solicitor authorized to sign. The addition of the word “per” does nothing to add to or detract from the obligations entered into by the parties nor does it operate to render the agreement in some way unenforceable. … ”

120 The appellant’s submissions are flawed at several levels.

121 Although the appellant did not refer to it, s 12(1)(b) of the Code relevantly provided that a credit contract -

“ … must be in the form of -

…

(b) a written contract document signed by the credit provider and constituting an offer to the debtor that is accepted by the debtor and in accordance with the terms of the offer.”

122 On one view, Ms Dixon’s signature of the loan agreement, as an offer, had to be a signing “by the credit provider”. However, s 170 of the Code provided that a credit contract “is not illegal, void or unenforceable because of a contravention of this Code unless this Code contains an express provision to that effect”. There was no relevant express provision. On another view, a credit contract entered into otherwise than as required by s 12 was nonetheless binding and enforceable: the debtor was not to be denied the benefits of the Code (such as variation on the ground of hardship) because the credit contract was not in the requisite form.

123 To this may be added that s 176(1) of the Code provided that the conduct of an agent of a credit provider “acting within his or her actual or ostensible authority will be imputed to the credit provider and taken to be the conduct of the credit provider”. Again, the debtor was not to be denied the benefits of the Code because the purported agent of the credit provider with ostensible authority, did not have actual authority.

124 Assuming that Ms Dixon’s signature had to be a signing “by the credit provider”, the proper enquiry into her authority is whether she was authorised to provide the loan agreement to the appellant, as an offer in the form of a written contract document signed by the respondent, amongst the documents enclosed with the letter of 12 November 2003. The respondent’s mortgage manager instructed Turnbull Hill. The Pack included, within the instructions, signature of the written contract document and providing it as an offer. Within Turnbull Hill, Ms Dixon attended to those instructions as an employed solicitor. She was in fact authorised by the partner in charge of the mortgage practice to sign the loan agreement, and otherwise had authority in the course of her employment to do what she did in giving effect to the instructions from the respondent.

125 In our opinion, in the circumstances Ms Dixon’s signature of the loan agreement, as an offer, was a signing “by the credit provider”. The effectiveness of what she did was not negated by the statement in the Pack that an authorised signatory of the approved solicitors was to sign the loan contract and mortgage documents as an authorised officer of the respondent. The authorised signatory was given express authority but, apart from that conferral of authority, Turnbull Hill had authority to do all that was necessary, as it happened through Ms Dixon, to give effect to the instructions the firm had received. The written contract document, as an offer, was thereby signed by the respondent.

126 It did not matter that Ms Dixon signed purportedly as an authorised officer, or whether or not “per” was part of her signature. Our conclusion may be tested by asking whether, if the respondent had declined to lend the $432,000 to the appellant, it could have resisted a claim by the appellant that a contract had come into existence whereby (subject to any provision entitling it not to do so) it was obliged to lend him the money. In our view, it could not.

127 Up to this point we have assumed that the credit provider had to sign the offer. In our view, it was not necessary that the loan agreement provided to the appellant be signed by the credit provider. All that was necessary was that Ms Dixon have authority to provide the documents, including the loan agreement as an offer which the appellant could accept. On the reasoning in the preceding paragraphs she did have authority to give effect to the instructions to her employer from the respondent.

128 It is not necessary to consider the application of s 170 or s 176(1); however, there is a respectable argument that Ms Dixon had ostensible authority to do what she did, see Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 208 ALR 213 at [38]-[44].

129 In any event, the judge found that the respondent had ratified the transaction. Ground 9, and ground 16 in part, addressed ratification. The submissions went beyond it but, as we now explain, the judge was correct.

130 We first say that, so far as ground 9 included a challenge to the statement that Ms Dixon’s evidence that she was authorised by Mr Teague to sign when required was uncontradicted, the ground is misconceived. There was no contrary evidence. We take the appellant to have meant that, from other evidence, Ms Dixon did not have authority to sign; but that is not a challenge to her evidence of what Mr Teague said to her: she was not challenged on that in cross-examination.

131 A principal can ratify the making of a contract entered into by a purported agent when the agent did not in truth have authority to make the contract on behalf of the principal. The ratification has retrospective effect, and the agent is treated as having had the requisite authority: Union Bank of Australia Ltd v McClintock (1922) 1 AC 240 at 248; [2006] NSWSC 1028 at [81]; Jones v Peters (1948) VLR 331 at 335.

132 Whether the conduct of the principal amounts to ratification is a question of fact, but there should be “clear adoptive acts” (Eastern Construction Co Ltd v National Trust Co Ltd (1914) AC 197 at 213 per Lord Atkinson); the conduct must be unequivocal (for example, Petersen v Moloney (1951) 84 CLR 91 at 101). It is well expressed in Dal Pont, Law of Agency, 2nd ed at 5.28 -

“The positive acts of the alleged principal may, aside from any express words, constitute sufficient evidence of ratification. This may be so where the fair inference to be drawn from a person’s conduct, on an objective basis, is that the person consents to a transaction to which he or she might properly have objected. Put another way, ratification ‘is implied from or involved in acts when you cannot logically analyse the act without imputing such approval to the party whether his mind in fact approved or disapproved or wholly disregarded the question’.” (citations omitted)

133 Acceptance of the benefit of the unauthorised act of the agent with knowledge that the benefit flows from that act will ordinarily suffice (Australian Blue Metal Ltd v Hughes (1961) 79 WN (NSW) 498 at 515; Brockway v Pando [2000] WASCA 192 at [120]). Suing on a transaction brought about by an agent acting beyond authority will also ordinarily mean ratification of the unauthorised transaction: the reason is obvious, see Dal Pont, op cit, at para 5.29 and cases cited.

134 There must be full knowledge of all the material circumstances in which the act was done, unless the principal intends to ratify and take the risk whatever the circumstances (for example, Bremner v Sinclair NSWCA, 3 November 1998; (2001) ANZ Conv R 29 at [32] per Campbell J. The extent of knowledge necessary depends on the particular facts. It should be enough knowledge to decide whether or not to adopt the unauthorised act (Bremner v Sinclair at [32]).

135 In our opinion, the conduct of the respondent in advancing the $432,000, taking the mortgage, receiving the payments of interest, corresponding about calling in the loan, and ultimately bringing proceedings to recover the money lent and obtain possession of the property pursuant to the mortgage, was more than enough to constitute adoption of Ms Dixon’s acts, relevantly, signing the loan agreement as an offer, if that act was otherwise beyond her authority.

136 We do not accept the appellant’s submission that specific knowledge that Ms Dixon signed the loan agreement was required; in our view, the material circumstances did not descend to that detail. It was enough that the respondent knew, as it did from Turnbull Hill certifying to it, amongst other matters, that the documents were in the approved form and conformed with instructions and the matter was in order for settlement, that an offer made through the provisions to the appellant of the loan agreement and the other documents had been accepted. Effecting the loan and mortgage transaction, which it had approved in principle, was what the respondent wished and intended. It did not matter for achieving that result that the loan agreement was signed by Ms Dixon rather than (for example) Mr Teague, and the respondent adopted the result. In our opinion, there was full knowledge of all the material circumstances.

137 If it were necessary, we would be satisfied that it was a case of intended ratification regardless of any knowledge of Ms Dixon’s signature of the loan agreement, if that were part of the material circumstances. To repeat, the respondent wished and intended that the loan and mortgage transaction take place. It approved the secured loan in principle, it gave instructions to effect it, it received Turnbull Hill’s certification that the matter was in order for settlement. It then advanced the money and engaged in the other ratifying conduct. It could not reasonably be said, in our opinion, that the respondent’s conduct would be qualified by concern over the identity of the signatory to the loan agreement when it was sent as an offer corresponding to the approved transaction.

138 The appellant submitted that, because the Acceptance of Borrower stated that if the offer was not accepted within 14 days the respondent could withdraw it, any ratification had to be within the same 14 days. We do not agree. There is no connection between the ability to withdraw the offer and ratification of what for present purposes we assume to be an unauthorised making of the offer.

139 The appellant also submitted that there could not be ratification because the Pack expressly required an authorised signature. He contended that the respondent could not “ratify the actions of unauthorised persons signing documents contrary to the provision of their own contract”. Assuming for present purposes that the Pack negated the effectiveness of the signature by Ms Dixon, again we do not agree. Ratification is adoption of what was ex hypothesi not authorised, and which went beyond what was authorised pursuant to the Pack. That is not changed by describing what occurred, as ground 9 did, as a “void and invalid act”. The submission was misconceived,

140 The appellant submitted that ratification “applies to … the actual signing by Michelle Dixon”, and that acts such as attending settlement and payment of the loan money was not ratification of the act of signing itself. For the reasons abovementioned, the ratification did not have to be expressly directed to the signing of the loan agreement.

141 Finally, ground 16 included the assertion that estoppel “also applies regarding stating the respondent ratifying any signatures”. This is not easy to understand, and was not explained. The estoppel rested on the sentence in the letter of 12 November 2003 concerning an agreement to lend. In our opinion, there is no question of an estoppel against ratification.

142 We turn then to the appellant’s submissions concerning ground 24.

143 At the transcript pages to which the ground referred the appellant applied to amend his defence to include, amongst other additional paragraphs, a paragraph 27 -

“The defendant pleads the Civil Liability Act section 5(O) [sic]

Particulars

The solicitors for the plaintiff were negligent in as much as the pre-contractual statement was signed negligently and altered negligently and without valid authority to sign. All documents produced to the defendant were in breach of the duty of the solicitors.”

144 The judge doubted the relevance of the paragraph, but allowed the amendment on the basis that the better course was to “deal with what [the appellant] seeks to raise in due course”.

145 Section 5O of the Civil Liability Act 2002 is concerned with the standard of care for professionals. The trial judge did not at the pages mentioned reject the relevance of s 5O (let alone of s 5Q which is concerned with a non-delegable duty of care, and was not raised).

146 We were not referred to any submissions made to the judge in relation to para 27 of the defence. The matter is not referred to in his Honour’s reasons. From this it may be that no submissions were made, but in any event there was no occasion for the judge to deal with a manifest irrelevance. Assertion of negligence of Turnbull Hill was beside the point. If because of what Turnbull Hill did or did not do the loan agreement (or the mortgage) was invalid or unenforceable, the appellant had a potential defence. Whether or not the solicitors were negligent, and even more so whether they adhered to a particular standard of care in what they did, was of no consequence.

147 The appellant’s submissions on appeal were little more than that the judge was in error in “rejecting the relevance of” ss 5O and 5Q, and that Turnbull Hill “should be joined in the proceedings as their negligence has led to the alleged loan agreement being signed by a stranger (Michelle Dixon)”. No application to join Turnbull Hill was made at the trial. Had an application been made, it would undoubtedly have been refused, and properly so.

The grounds concerning the validity or enforceability of the mortgage

148 We again essay a distillation of the submissions, and put them in our own order.

149 The appellant submitted that, on essentially the same reasoning as we have summarised in relation to signature of the loan agreement by Ms Dixon, Mr Powter was not authorised to sign the mortgage on behalf of the respondent: see in particular ground 13. He submitted, although the consequential reasoning was not explained, that the mortgage was therefore not effective.

150 The respondent submitted that Mr Powter’s authority had not been in issue at trial; on our understanding that was so. It was not clear whether the submission was asserting that the appellant should not be permitted to rely on ground 13 in that respect. Since we do not accept the appellant’s submission, we will not stay to consider whether he should be permitted to make it.

151 The mortgage was in the approved form under the Real Property Act (see s 104). The form required signature on behalf of the mortgagor, and the mortgage was duly signed by the appellant and witnessed by the justice of the peace. The form did not require signature by the mortgagee, and Mr Powter’s signature appeared on it as -

“Certified correct for the purposes of the Real Property Act 1900 by the person whose signature appears below.
(Signature)
Signatory’s name KENNETH MICHAEL HILL ASHLEIGH POWTER
Signatory’s capacity: Solicitor for the mortgagee”

152 This certification may have been pursuant to s 117(1)(a) of the Real Property Act, which provided that the Registrar-General could reject a dealing unless it bore “a certificate (signed by or on behalf of each person by whom the dealing … has been executed) to the effect that the … dealing … is correct for the purposes of this Act”. However, s 56(1) requires only that a mortgage be executed by “the proprietor”, that is, the appellant, and the mortgage was not executed by the respondent. It is not necessary to decide whether s 117(1)(a) applied.

153 Mr Powter was an employed solicitor at Turnbull Hill. As such he appropriately signed the mortgage as a solicitor for the mortgagee, to certify its correctness as required. He had authority to do so in order to carry out the instructions of the respondent.

154 There was no other question of his authority, and nothing in the Pack meant that the mortgage was thereby not validly taken by the respondent. The mortgage did not have to be signed by the respondent, and Mr Powter did not purport to sign as an authorised officer of the respondent.

155 The appellant submitted that the mortgage had been vitiated by alteration by Mr Powter after he had signed it: see ground 25.

156 We have set out the manner in which Mr Powter signed the mortgage to certify its correctness for the purposes of the Real Property Act. The alteration on which the appellant relied was the deletion of the name Kenneth Michael Hill and the substitution of the name Ashleigh Powter. It may be proper to infer that this was done after the mortgage had been signed by the appellant and returned to Turnbull Hill, when Mr Powter came to certify its correctness prior to sending it for registration. We so assume.

157 As part of his submissions the appellant relied on the Pack so far as it stated that any alteration or addition to any contract document after it had been signed by the borrower “is deemed ineffective unless the borrower signs or initials in the margin opposite the alteration”. He did not in this connection raise s 17 of the Code. He said, correctly, that there were no initials accompanying the substitution of Mr Powter’s name for that of Mr Hill. However, the Pack embodied terms as between the respondent and Turnbull Hill, not terms as between the respondent and the appellant so as to make an uninitialled alteration ineffective as between them.

158 Ground 25 otherwise was that the mortgage was in breach of various provisions of the Conveyancing Act, the Real Property Act, the Real Property Regulation and the memorandum. We understand the appellant to have meant Memorandum 2584554Q: the correct dealing identification of the Memorandum to which the letter of 12 November 2003 referred, and which was incorporated in the mortgage, included the Q.

159 The only provisions to which the appellant’s submissions referred were in the Real Property Regulation 2003, although the submissions referred to Schedules 1 and 2 cll 11, 12 and 13 rather than the “Schedule 2 points 10(1) and (2), and (11)” in the ground of appeal. It may be that the appellant intended to raise the other provisions not in relation to alteration of the mortgage, but in relation to the manner of signature – the provisions were largely those on which he had relied in relation to the manner of signature of the loan agreement by Ms Dixon. If he did, in our opinion they are not relevant to the signature of the mortgage by Mr Powter.

160 Schedule 1 is concerned with fees. Clauses 11, 12 and 13 in Schedule 2 of the Real Property Regulation are concerned with various aspects of dealings and their execution, such as numbering of pages and inserted pages. The appellant’s submissions did not explain the asserted breach. We cannot see a breach, let alone one affecting the validity or enforceability of the mortgage.

161 In any event, there was not a material alteration to the mortgage. The mortgage was to be certified correct for the purposes of the Real Property Act by a person acting as solicitor for the mortgagee. Mr Hill’s name had been typed. Presumably because he was unavailable, Mr Powter signed the mortgage. He substituted his name for that of Mr Hill. This was not an alteration as referred to in the Pack, nor was it an alteration which otherwise vitiated the mortgage.

162 We turn to the appellant’s submissions referable to ground 19, which may have been related to ground 7 earlier considered in so far as it asserted that the loan agreement was not a secured agreement. The submissions, as best we understand them, invoked cases such as Provident Capital Ltd v Printy and Perpetual Trustees Victoria Ltd v English [2010] NSWCA 32, to the effect that a mortgage may secure nothing if expressed to secure an indebtedness found in a separate and invalid contract of loan.

163 The ground depended on it being held that the loan agreement was not a valid and enforceable contract of loan under which the appellant was indebted to the respondent. We have not so held. No more need be said.

164 The appellant submitted that the respondent’s entitlement to possession of the property in the event of default was to be found in Memorandum 2584554Q, and that it was not entitled to possession because that Memorandum was “not the appellant’s memorandum, but for another person, from another solicitor from seven years earlier and from an unrelated matter in 1996” – see ground 18.

165 Section 80A of the Real Property Act provides for filing of a memorandum setting forth provisions which are capable of being covenants in a dealing of a specified class, and for the incorporation of the provisions in the memorandum in a dealing. The mortgage incorporated the provisions in the Memorandum. A copy of the terms of the Memorandum had been one of the documents provided by the letter of 12 November 2003. (The appellant’s submissions included that the memorandum “was never shown to the appellant as indicated in “the trial”. No ground of appeal challenged a finding that a copy of the terms of the Memorandum had been provided, as it plainly had.)

166 The original Memorandum had been filed on 5 November 1996 by Clayton Utz, solicitors, on behalf of AMS. For that reason, according to the appellant, it was not his memorandum, but for another person, from another solicitor, from seven years earlier and from an unrelated matter in 1996. The appellant recognised s 80A, but submitted that s 80A “can not substantiate the covenants contained as the memorandum in question is not mine and never was”, and that the respondent could not rely upon s 80A of the Real Property Act “to bind the appellant to a memorandum that is obviously not the appellant’s and NOT REGISTERED and does not attract indefeasibility”.

167 The purpose of s 80A is to permit the filing of a memorandum which can be taken up in subsequent dealings. Memorandum 2584544Q was indeed filed by another solicitor and some years earlier. But that was in conformity with s 80A. It was not a memorandum for another person or from an unrelated matter, but a memorandum able to be taken up by incorporation into the appellant’s mortgage.

168 This was done, and it is difficult to accept that the appellant did not understand that it was done. (A mortgage given by the appellant and his then wife in 2000 had incorporated terms and conditions in a registered memorandum.) At one point he submitted that it would be different if the Memorandum was “a blank generic one”; this was not explained. Memorandum 2584544Q was registered, it became the appellant’s memorandum by incorporation of its provisions in his mortgage, and indefeasibility had nothing to do with it. The appellant’s submissions revealed fundamental misunderstanding of s 80A and basic conveyancing practice.

Conclusion

169 None of the grounds of appeal should be upheld.

Orders

170 For the avoidance of doubt, the stay granted on 25 May 2009 should expressly be discharged. We make the following orders -

1. Appeal dismissed with costs.
2. Discharge the stay granted on 25 May 2009.

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