Mandhan v Toyota Finance Australia Limited (No 3)
[2023] FCA 1261
•23 October 2023
FEDERAL COURT OF AUSTRALIA
Mandhan v Toyota Finance Australia Limited (No 3) [2023] FCA 1261
File number: SAD 258 of 2018 Judgment of: BESANKO J Date of judgment: 23 October 2023 Catchwords: CONTRACTS — application for damages in relation to a loan advanced by a finance company for the purchase of a motor vehicle — applicant claims finance company engaged in fraud and deceit in connection with the provision of the loan — principal acts of fraud and deceit said to relate to advice as to the availability of loan protection insurance, the applicant’s accommodation status at time of the loan and the applicant’s expenses at time of the loan — claim for damages involving gemstones said to be worth $1.5 billion and projects likely to realise billions of dollars — credit findings in relation to the applicant and his wife — application dismissed — cross-claim by finance company for relief against the applicant for default in repayment of the loan upheld Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s 12DA
Corporations Act 2001 (Cth) ss 180, 181, 182, 183
Evidence Act 1995 (Cth) ss 76, 77, 78, 79, 80
National Consumer Credit Protection Act 2009 (Cth)
Federal Court Rules 2011 (Cth) r 23.13
Cases cited: Bonython v R (1984) 38 SASR 45
Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mandhan v Toyota Finance Australia Limited [2019] FCA 2124
Division: General Division Registry: South Australia National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 251 Dates of hearing: 18, 19 March 2021, 19–21, 24 May 2021, 27 September 2021 Counsel for the Applicant: The Applicant Appeared in Person Counsel for the Respondent: Mr B Roberts KC Solicitor for the Respondent: Thomson Geer ORDERS
SAD 258 of 2018 BETWEEN: SAMMAR B MANDHAN
Applicant
AND: TOYOTA FINANCE AUSTRALIA LIMITED ABN 48 002 435 181
Respondent
AND BETWEEN: TOYOTA FINANCE AUSTRALIA LIMITED ABN 48 002 435 181
Cross-Claimant
AND: SAMMAR B MANDHAN
Cross-Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
23 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Interlocutory applications made by the applicant and dated 16 July 2021 and 21 September 2021 respectively be dismissed.
2.The applicant’s Originating application and claim be dismissed.
3.The respondent provide draft minutes of order with respect to the Cross-Claim reflecting the conclusions set out in these reasons.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
INTRODUCTION
The applicant in this proceeding is Mr Sammar B Mandhan and the respondent is Toyota Finance Australia Limited (Toyota Finance). At the time of the relevant events in 2016, Mr Mandhan was known as Mr Rayhan Arvin Thomsan. He changed his name to his present name on 7 February 2018. I will refer to him in these reasons as Mr Mandhan.
Mr Mandhan’s claim is primarily for damages, including exemplary damages, arising out of transactions involving his purchase of a motor vehicle at the Peter Kittle Toyota (SA) dealership and his borrowing of monies from Toyota Finance to finance the purchase of the motor vehicle. The seller of the vehicle was Alice Car Centre Pty Ltd and the purchase price was $31,290. The amount Mr Mandhan borrowed from Toyota Finance was $39,576.
The claim for damages made by Mr Mandhan in his Statement of Claim was for an amount of $1,899,999 by way of general damages and $519 million by way of exemplary damages. Mr Mandhan also sought the recovery of $15,999 paid by him “to maintain the vehicle and loan repayment”. Approximately eight months after his Statement of Claim was filed, Mr Mandhan sought to amend his Statement of Claim in a way which, among other things, would have increased his claim for damages to a figure in the order of $2.6 million plus $2.4 billion for “loss of value of projected income from oil manufacturing and profit” and $300 million for “loss of value of gemstones” and other damages. I refused Mr Mandhan’s application to amend the Statement of Claim.
Mr Mandhan appeared for himself throughout the proceeding. He gave evidence as did his wife, Mrs Agammya B Mandhan. I suggested to Mr Mandhan on a number of occasions that he seek legal assistance.
The principal claim made by Mr Mandhan against Toyota Finance is based on allegations of fraud and wilful deceit. The Statement of Claim also refers to ss 180 to 183 inclusive of the Corporations Act 2001 (Cth). These sections impose civil obligations on directors and other officers of corporations. They identify a number of well-known duties owed by directors of corporations. The Statement of Claim also refers to s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) which provides that a person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive, or is likely to mislead or deceive.
Mr Mandhan made lengthy submissions about what he said was the fraud of Toyota Finance. He said little with respect to the alleged breaches of statutory provisions. Mr Mandhan also made reference to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), but he has not established that that Act is in any way relevant.
The thrust of Mr Mandhan’s case was that in connection with the purchase of a motor vehicle, being a Toyota Rav4, he obtained a loan from Toyota Finance and that the conduct of agents or employees of Toyota Finance in connection with the provision of the loan was fraudulent. The fraudulent conduct concerned certain information recorded in writing and certain statements that were made to Mr Mandhan and his wife.
The precise parameters of Mr Mandhan’s case has not always been clear. A convenient starting point in terms of identifying the issues is a letter of complaint dated 24 June 2018 sent by Mr Mandhan to Toyota Finance. Part of the letter was in the following terms:
Chain of Events
1. Selected RAV 4, applied for finance, finance was approved.
2. I registered the RAV 4 under my wife’s name (Pankaja).
3.Anything registered under her name is either fully paid or the loan is fully insured.
4.We wanted to take the insurance, the finance manager at Peter Kittle Toyota told us due to low interest rate and being a private finance, loan cannot be secured and only option available is to extend the warranty of the RAV 4 for a payment of $1500.
5.We just realised that the finance Manager also mis represented, the job status (full time instead of casual which I mentioned), living status (i.e. we rent the property instead he mentioned we stay with parents)
6.I personally believe in the event the finance manager presented the fact properly, I still had the possibility to get the finance approved, I am bringing this to your attention to authenticate the 4th point i.e. the finance manager who can mis represent the fact to his parent company can also mis represent facts with the customers as well.
7.In the event, I had the insurance on the loan, which I wanted, it would have helped me in following ways.
8.From 28th July 2017, when I stopped working due to illness, I would not have burdened myself financially by making the instalment payment till Dec 2017. This payment pushed me in to severe financial hardship.
9.In the process, my payments would have automatically got paid till recovery from surgery and back to normal duties, instead the payments from Jan 2018 to Sept 2018 got differed and extended the period of the contract.
10.I have been made to pay for the mistake of the finance manager from Peter Kittle Toyota.
What do I want from Toyota Finance?
OPTION 1:
11.Wave all the accumulated repayments from Jan 2018 till I go back to work after surgery tentatively 2nd week of October. Refund all the payments made from August 2017 to Dec 2017. $thirty three thousand as damages to push me into severe financial hardship, by wrongfully denying the insurance cover for the loan.
OPTION 2:
12.Collect the RAV 4, close the a/c with no more payments to make, and payment of $twenty four thousand as damages to the client for creating financial hardship.
It would appear from the letter of complaint that Mr Mandhan’s complaints at that point in time were as follows:
(1)The finance manager at Peter Kittle Toyota made a misrepresentation to Mr Mandhan and his wife concerning the availability of loan protection insurance (also referred to as finance protection insurance). The finance manager indicated that loan protection insurance was not available.
(2)The finance manager also made a misrepresentation to the effect that Mr Mandhan’s employment status was as a full time employee when, in fact, as Mr Mandhan mentioned to the finance manager, he was a casual employee.
(3)The finance manager made a misrepresentation about the accommodation status of Mr Mandhan and his wife. The finance manager said that Mr Mandhan and his wife were staying with parents when, in fact, they were renting a property.
In the case of the second and third misrepresentations, nothing is said about the person to whom the misrepresentations were made. Before addressing that issue, it is necessary to say something about the structure of the business of Peter Kittle Toyota and of Toyota Finance. David Richard Jensen and Scott John Krooglik were employed by Peter Kittle Toyota as business managers in finance. They were involved in the provision or sale of financial products and had no role in the sale of motor vehicles. Each was on a retainer at the relevant time and, in addition, each received a percentage of the commission paid to Peter Kittle Toyota by Toyota Finance for, or in connection with, the provision of financial products, including loans. Mr Jensen and Mr Krooglik were each Authorised Representatives under an agreement between Peter Kittle Toyota (Alice Car Centre Pty Ltd) and Toyota Finance (exhibit R11). Toyota Finance employed its own staff who were in Sydney and who processed the loan applications as they were received. So far as is known, they were paid a wage and not a commission and they were referred to as lending assessors (or lending analysts). They processed the loan applications as they came in from the dealerships and business managers such as Mr Jensen and Mr Krooglik. The applications are sent electronically by business managers at Peter Kittle Toyota to the lending assessors at Toyota Finance using a computer program called ATLAS. A record generated by ATLAS was tendered in evidence and I will refer to it later in these reasons.
Returning then to the second and third representations, it appears to be Mr Mandhan’s case that the representations were made by the business managers to the lending assessors, although even that is not entirely clear, because at one point it was said by Mr Mandhan that his rental agreement was given to the lending assessors and further, at another point Mr Mandhan alleged that the business managers in finance and the lending assessors were all part of a conspiracy which involved an intention to harm him.
As far as I was able to discern from the evidence and submissions of Mr Mandhan at the trial, the complaints he makes with respect to the loan he obtained from Toyota Finance are as follows:
(1)The business managers recorded Mr Mandhan’s living status as living with parents and the amount involved as $1. As I will explain later in these reasons, the evidence from the business managers was that $1 was the way in which the field in the computer program would be completed in circumstances where there was nothing in fact payable. I accept that evidence.
An important aspect of this complaint was that Mr Mandhan said he gave a lease or rental agreement to Mr Jensen on 26 March 2016 and there was deliberate concealment of the rental agreement by the employees or agents of Toyota Finance.
(2)Mr Mandhan’s living expenses were deliberately understated by the business managers. As I will explain, I find that this did not occur. Even if it had, it is immaterial because the relevant living expenses, other than rental, were replaced by the Household Expenditure Measure or HEM number.
An important aspect of this complaint was that Mr Mandhan said he gave an income and expenses form to Mr Jensen on 26 March 2016 and there was a deliberate concealment of the form by the employees or agents of Toyota Finance.
(3)Mr Mandhan was told that Toyota Finance was not a bank and that loan protection insurance was not available. Mr Mandhan did not take out loan protection insurance.
This is no more than a summary of the key complaints. For a full description of Mr Mandhan’s case, I refer to my summary of his evidence which is set out below.
As I have said, Mr Mandhan gave evidence as did his wife. For reasons I will give, I do not accept either of them as a truthful witness. Mr Mandhan’s Originating application and claim must be dismissed. I should add the following. There was a hint in some of Mr Mandhan’s submissions and, in particular, his closing submissions, that he was seeking to run an alternative case that even if the respondent’s case as to the facts of what was said is accepted, nevertheless Toyota Finance should not have accepted what Mr Mandhan said, but should have carried out its own inquiries and verification exercises. That is not an alternative case that was clearly articulated and run and it needed to be if it was to be advanced. In any event, on the evidence there is no substance to such a case.
The evidence adduced by Toyota Finance consisted of evidence from Mr Jensen who, as I have said, was at the relevant time employed at Peter Kittle Toyota as a business manager in finance. He did not recognise Mr Mandhan and he did not recall dealing with him. However, he gave evidence of his general practice at the relevant time. Mr Krooglik was also a business manager in finance at Peter Kittle Toyota. He also did not recognise Mr Mandhan and could not recall having any dealings with him. He gave evidence by reference to his general practice at the relevant time. As I will explain, I accept the evidence of Mr Jensen and Mr Krooglik. Toyota Finance also adduced evidence from Mr Steven Matthew Benyamin who is employed by Toyota Finance as a compliance consultant. Finally, Toyota Finance adduced evidence from Ms Jacqueline Sihaphone who is employed by Toyota Finance as a corporate counsel. I accept the evidence of Mr Benyamin and Ms Sihaphone.
Toyota Finance brought a Cross-Claim in which they seek orders for the repayment of the outstanding balance of the loan and the return of the motor vehicle. For reasons I will give, Toyota Finance has established its Cross-Claim and should lodge and serve draft minutes of order reflecting the conclusions in these reasons.
MATTERS ARISING DURING THE COURSE OF THE TRIAL
Mr Mandhan sought to tender during the course of evidence what were said to be expert’s reports, a valuation and two feasibility studies.
The Application by Mr Mandhan to Tender two “Expert’s” Reports
The initial estimate for the length of the hearing proved to be inadequate and the hearing was adjourned for a time. Upon the resumption of the hearing, Mr Mandhan applied to tender two so-called expert reports, one prepared by himself and entitled “Expert Audit report for submission in the Matter of SAD 258 of 2018” which was 14 pages in length and dated 16 May 2021 together with a number of accompanying documents (Mr Mandhan’s expert audit report), and a report prepared by Mrs Mandhan entitled “Expert Forensic [Graphology] report for submission in the Matter of SAD 258 of 2018” which is a report of six pages in length and dated 16 May 2021 together with accompanying documents (Mrs Mandhan’s expert forensic report). I rejected the tender of each document.
With respect to the application to tender Mr Mandhan’s expert audit report, I considered that it was too late in the hearing for this report to be tendered. Furthermore, the expert report is not in any sense an audit report. It is not a report of an auditor of a company drawing on the accountancy and audit expertise of such a person. The document contains a number of comments about documents attached to the report and how those documents should be interpreted. Some of the documents were tendered independently of the report. The report also contains allegations of fact and comments on the system adopted by Toyota Finance which seem to be inferences of fact or conclusions of fact that Mr Mandhan asks the Court to draw and not matters of expert opinion. The report does not satisfy the requirements for expert evidence (Ch 3, Pt 3.3, ss 76–80 of the Evidence Act 1995 (Cth); Heydon JD, Cross on Evidence (13th ed, LexisNexis Australia, 2021) Ch 15; Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 (Makita v Sprowles) at 729–745; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [91]; Bonython v R (1984) 38 SASR 45 at 46 per King CJ).
With respect to the application to tender Mrs Mandhan’s expert forensic report, it is necessary to identify the subject matter of that report. Mrs Mandhan says that she has had experience in the field of “Graphology, Pronology, Psychological analysis of a criminal mind, Behaviour and Voice analysis along with interpretation of image, object and numbers under a Qualified forensic Consultant and 15 years of working as an independent forensic consultant”. Mrs Mandhan said that she had analysed the signatures of Mr Jensen, Mr Krooglik, Ms Regina Brooks and one of the solicitors for Toyota Finance, Mr Michael O’Donnell. By way of example, the following is the opinion she seeks to express with respect to Mr Jensen based on his signature and Mr O’Donnell based on his signature:
I. David Richard Jensen
The signature of David Jensen confirms his state of mind in relation to making this signature is:
1. David has the ability to convince his clients with sugar coated facts.
2. David traps his client with fact and lie based statement web.
3.David makes his client in believing that, he is looking after the client’s best interest.
4.David’s words don’t match with his action.
In my opinion the state of mind seen in the signature of David Jensen asserts that he has deceived the applicant with full knowledge. The material fact confirming the opinion formed is:
a.Changing the rental status to staying with parents, where the email from the resolution department confirms the submission of Tenancy Agreement at the time of purchase.
b.Changing the monthly expenses to $692 were proof existed on monthly rental obligation of $1109
c.Assets and Liability were reported as zero by David Jensen. This opinion is based on assumption that any applicant applying for credit will certainly have some sort of assets like furniture and house hold goods.
IV. Michael O’Donnell
The signature of Michael O’Donnell confirms his state of mind at the time of making the signature
1. Michael create a perfect imaginary story from thin air.
2. Michael is a chronic liar
In my opinion Michael has lied to the applicant with full knowledge.
This opinion is based on the assumption that Thomson Geer is representing Toyota finance and Michael is counsel representing Toyota finance, so it is obvious that Toyota finance has been exchanging documents and call records via Thomson Geer which Michael must be aware before issuing the enforcement letter in regards to default notice.
Graphology is defined in the Macquarie Dictionary as “the systematic study of handwriting, especially as regarded as an expression of the writer’s character”.
I rejected the tender of this report because it was advanced at too late a point in the trial. Furthermore, it was not apparent to me that Mrs Mandhan had any specialised knowledge, but even if I be wrong about that, the report did not comply with the Practice Direction dealing with the matters to be included in an expert report. Furthermore, it is difficult to know what to make of the statements in the report. It is difficult to know in what way Mr Mandhan relies on the report. In each case, Mrs Mandhan expresses certain opinion conclusions as to the writer’s state of mind and then goes on to say that “the material fact” in support of this opinion is and various factual matters are mentioned. Those factual matters are the matters that Mr Mandhan seeks to prove in the proceeding. If he proves those matters, then certain conclusions follow. Insofar as Mr Mandhan is asserting that his proof of material facts prove certain characteristics of relevant persons, the characteristics are irrelevant. By that point in the reasoning, Mr Mandhan has either proved his case or he has not.
The Refusal of the Tender by Mr Mandhan of MFI A79 and MFI A82 A and B
MFI A79 consists of 75 pages of what purport to be gemstone valuations by Mrs Mandhan (Dr Poonam Singla) between 10 February 2016 and 18 May 2016. The total of the valuations for the gemstones (60 rubies and 15 sapphires) is approximately $1.5 billion. It is convenient to set out one example of the valuations. It is a valuation of what is said to be a 15.12 carat “natural ruby” on 27 April 2016 for $50.1 million. The valuation is as follows:
Gemstone Valuation
Dr. Nandini Business Consultant [Gemologist]
Rayhan Arvin Thomsan
[REDACTED]
Item ID
Date
R1512
27/4/2016
UNMOUNTED GEMSTONE
Gemstone
NATURAL RUBY
Colour:
Vivid Red
Weight
15.12 Carat
Tone
Medium Dark
Dimension [mm]
14.88x11.30x9.72
Hue
Purple
Cut
Perfect Symmetry
Saturation
Strong but Vivid
Shape
Oval
Eye Clarity
Excellently Clean
Refractive index
1.773
Loupe Clarity
10x Clean
Specific Gravity
4.01
Inclusion
Fine intersecting silk lines
Hardness
9
External
Unpolished
Origin
Burma
Internal
Flawless & Transparent
Varity
Corundum
Treatment
Untreated / Unheated
Valuation & Purpose
Valuation is done to determine the present day replacement value of the gemstone.
For the valuation pure Gold is used as the indicative metal for comparison.
Valuation amount excluding GST in Australian Dollars
$50,100,000/- [Fifty Million One Hundred Thousand Dollars]
[Signature]
Dr Poonam Singla
Gemologist
Mr Mandhan sought to tender the valuations at the hearing. Counsel for Toyota Finance objected to the admission of MFI A79. He said that there was no sufficient qualification of the witness as an expert, nor compliance with ordinary principles of admissibility for expert evidence. There was no proper explanation for non-compliance with the orders of the Court regarding expert evidence if it is intended to bring the evidence forward as expert evidence. In the circumstances, Toyota Finance was not able to investigate qualifications and experience and engage an expert to provide opinion evidence concerning value. Counsel for Toyota Finance said that MFI A80 (which was a bundle of documents which purport to deal with Mrs Mandhan’s qualifications) did not cure the deficiencies he had identified. This is in circumstances in which the valuations exceed $1.5 billion and contain no reasoning. There was prejudice to Toyota Finance in being unable to investigate the issues of qualifications and value.
I rejected the tender as evidence of value and no other purpose for the tender was identified. First, I rejected the valuations because, quite clearly, they do not comply with the principles laid down in Makita v Sprowles at [87] or the requirements of r 23.13 of the Federal Court Rules 2011 (Cth). Secondly, there was no adequate explanation as to why the valuations which are dated in 2016 had not been provided to Toyota Finance earlier than they were. There will be prejudice to Toyota Finance if Mr Mandhan is permitted to rely on the valuations and that prejudice was identified by counsel for Toyota Finance (at page 101 of the transcript of 20 May 2021). Thirdly, and more fundamentally, there is no reasoning in the “valuations” about where one would buy the replacement gemstones or how big the market is or whether the values fluctuate such that a range is appropriate. This is in the case where it is said that the value of the gemstones is approximately $1.5 billion. Finally, I indicated that although I rejected the evidence on the above grounds, Mr Mandhan could adduce evidence from Mrs Mandhan as to her qualifications so as to ensure that should there be an appeal, all relevant evidence was before the Court. I have had regard to the evidence of Mrs Mandhan of her qualifications (at pages 110 to 117 of the transcript of 20 May 2021) and I am not satisfied that Mrs Mandhan has the necessary specialist knowledge to provide an opinion as to the value of the gemstones, assuming they existed (s 79 of the Evidence Act 1995 (Cth)).
Exhibit MFI A82 consists of two documents which I had marked “A” and “B”. Document A is entitled “Feasibility Summary Report for production and process to convert normal sugar to 6% sugar to supply in the world market – Rayhan Arvin Thomsan”. It is said to be a document prepared by Mr Mandhan on 5 June 2016. Document B is entitled “Summary of feasibility report for Herbal oil & Concentrate along with Wellness Centre – Rayhan Arvin Thomsan”. This is also a document said to have been prepared by Mr Mandhan on 5 June 2016. Document A purports to be a feasibility study about a project involving the production of raw sugar and white crystal sugar which will contain 5 to 6 gram sugar per 100 gram. The project is said by Mr Mandhan to have significant potential and a projected cashflow for the project refers to billions of dollars. Document B states in paragraph 1 that it is a feasibility study for a project involving “gemstone activated herbal oil and concentrate for Eczema, Psoriasis, arthritis, injury pain reliever oil & immune booster (herbal concentrate)”. Again, the cashflow is projected to be substantial, in the billions of dollars.
There was a strong objection to these documents by Toyota Finance. Counsel for Toyota Finance submitted that the documents had been produced at too late a stage in the trial. There would be a need to reopen Mr Mandhan’s evidence and to conduct other investigations.
There is no explanation for the delay in the provision of the reports which were produced after Mr Mandhan had left the witness box. There will be prejudice to Toyota Finance, particularly having regard to the very large sums of money referred to in the reports, if Mr Mandhan is permitted to adduce the evidence in the reports.
In addition to these matters, it is very difficult at a basic level to understand the reasoning in the reports and, therefore, whether any weight could be placed on the opinions. Individual paragraphs are capable of being understood, but the reports as a whole are difficult to assess and weigh.
Finally, Mr Mandhan’s alleged expertise in bookkeeping and accounting does not translate into expertise in the preparation of feasibility studies concerning the large scale worldwide production of modified sugar (MFI A82 A) or herbal oil and concentrate along with wellness centre.
Mr Mandhan’s Application to Re-open his Case and for Other Orders
After the evidence had been heard, but before closing submissions, Mr Mandhan issued Interlocutory applications seeking various orders, including an order that he be permitted to re‑open his case. I heard submissions with respect to the Interlocutory applications and then closing submissions in the trial. These are my reasons for deciding that each Interlocutory application should be dismissed.
Interlocutory application dated 16 July 2021
The first order sought in the Interlocutory application is as follows:
1.Order to tender the filled in Customer application form, which was submitted to Jensen on 26/3/2016, filled by Mrs Mandhan and signed by the applicant dated 25/3/2016.
Reason
This form was discovered from a damaged phone, which was kept aside to recover any recoverable data before discarding it. The data was recovered on 13/7/2021. This proof of evidence is crucial to this case for the administration of fair trial and justice.
Mr Mandhan affirmed an affidavit in support of the Interlocutory application on 16 July 2021. A number of documents were annexed to the affidavit. SBM-40 is an email from Mr Mandhan to the solicitors for Toyota Finance dated 23 April 2019. SBM-41 is an uncompleted form which carries the title of “Finance and Customer Application” and the Toyota logo. SBM-42 is a form which carries the Toyota log and the titles of “Peter Kittle Toyota” and “Customer Application Form” and appears to be completed and dated 25 March 2016. SBM-43 are three images of a recording device said to show the time and date of a photo taken of the filled in Customer Application Form “filled” on 25 March 2016. It records that it was created on 13 July 2021 and modified on 25 March 2016. SBM-44 is a Notice to produce issued by Mr Mandhan and dated 9 April 2019. SMB-45 is a two page document with the Toyota logo and the titles “Finance” and “Your Loan Application Checklist”. SBM-46 is the List of Documents of Toyota Finance dated 13 March 2021.
Mr Mandhan deposes that the photographs comprising SBM-43 refreshed his memory and made him remember additional detail of 26 March 2016 “while looking at the copy”. He then states:
a.Applicant took 4 referees detail, 2 of personal referees and 2 of work related.
b.Once asked Jensen which referees should be entered in the form, applicant filled the referees detail in the form.
c.As busy talking with Jensen and filling in the detail, applicant made mistake in filling the details properly.
d.Due to this applicant requested another copy of customer application form, so that the mistake can be corrected.
e.Jensen gave another customer application form, which was filled by Mrs Mandhan fully and this time in this new form applicant only signed.
f.It took time for Mrs Mandhan to fill the new form, as the new form was slightly differently formatted, even then almost all the detail from the filled form was copied into the new form.
g.Jensen also said, there could be slight variation in the forms, but it is almost the same.
Mr O’Donnell swore an affidavit on behalf of Toyota Finance in relation to the Interlocutory application. With respect to SBM-42, being the “Customer Application Form” appearing under the heading “Peter Kittle Toyota”, Mr O’Donnell deposed as follows:
3.I understand that Mr Mandhan is seeking to re-open his case in this matter in order to tender the document at SBM-42 to the Mandhan Affidavit (Subject Document).
4.I am instructed by Ms Jacqueline Sihaphone, Senior Corporate Counsel, Corporate Affairs - Legal of TFAL and verily believe that:
4.1.TFAL has never maintained a pro-forma document in the form of the Subject Document; and
4.2she has made due inquiry of Andrew Kittle, Chief Executive Officer of Peter Kittle Toyota (PKT), and is reliably informed that he does not recognise the Subject Form, and has never been aware of the use of a Peter Kittle Toyota branded manual application form within PKT’s business.
5.In the event that Mr Mandhan’s application to re-open his case to tender the Subject Document is permitted, I am instructed to:
5.1.seek orders for the delivery up and forensic testing of the mobile telephone referred to at [7.1] of the Mandhan Affidavit (Mobile Telephone);
5.2.seek orders for the delivery up and forensic testing of the electronic device which appears in the photographs referred to at [7.2] and annexed at SBM-43 to the Mandhan Affidavit (Electronic Device); and
5.3. adduce further evidence concerning at least:
5.3.1 the matters referred to in paragraph 4;
5.3.2 the forensic testing of the Mobile Telephone; and
5.3.3 the forensic testing of the Electronic Device.
Counsel for Toyota Finance submitted that the order sought in paragraph 1 of the Interlocutory application should not be understood as, in fact, an application to tender SBM-42 or, at least, principally not that, but rather to permit the further oral evidence outlined at paragraph 7.3 of Mr Mandhan’s affidavit which, as Toyota Finance understood it, is to the effect that having sought photographs more generally and then having undertaken a reconstruction of the telephone, that has prompted a recollection about a different form having been submitted to Toyota Finance. The form which was submitted is not SBM-42, but a different form that was filled out in the presence of Mr Jensen. Counsel for Toyota Finance submitted that that appears to be the effect of paragraph 7.3 (d to g inclusive). He submitted that it is not the materials themselves that are relevant, but rather the prompt that leads the further oral evidence that is relevant. Counsel for Toyota Finance submitted that what is not explained by Mr Mandhan is why the details of the events of 26 March 2016 were only recently recalled which has had the effect that they were not the subject of oral evidence from Mr or Mrs Mandhan or put to Mr Jensen.
Counsel for Toyota Finance refers to the evidence in paragraph 4 of Mr O’Donnell’s evidence. Counsel made it clear that he accepts that SBM-41, “Customer Application”, is a document of Toyota Finance and that document was produced during the course of the proceeding. The evidence from Toyota Finance is that SBM-42 is not a document of Toyota Finance or of Peter Kittle Toyota.
Counsel for Toyota Finance said that he was not inviting the Court to make a finding in relation to any of these matters. What he was submitting was that, in the event that the evidence was permitted, then Toyota Finance would be seeking the original mobile phone in order to undertake forensic testing. Furthermore, counsel for Toyota Finance submitted that SBM-42 is of extremely limited forensic significance because it is not submitted by Mr Mandhan that the document was ever given to Toyota Finance. The only forensic significance of the document is that, in some way, it acted as a prompt for a recollection that, according to Toyota Finance, should have been available at the time evidence was given. Mr Mandhan should not be permitted to, in effect, start the proceeding afresh. It is inevitable that there would be further evidence from Mr and Mrs Mandhan and cross-examination in addition to the forensic testing also referred to. Mr Jensen would need to be recalled.
I accept that the order sought by Mr Mandhan would result in a substantial re-opening which is not justified or appropriate at this stage.
The order sought in paragraph 2 of the Interlocutory application is as follows:
2.Order TFAL to submit complete document related to point 2, 3, 4 & 5 of Notice to produce dated 9/4/2019.
Reason
a.The procedural clarification given by Registry staff about making application, to His Honour for an order, asking respondent to provide document to make discovery in a time bond manner. Applicant was told by registry staff that, only after the respondent do not respond to the request or deny to provide the requested document, then only applicant must make application for an order.
b.The instructing solicitor Viki Sanderson, when asked verbally 3 times during different case management hearing, did not deny to provide such document, but maintained that as soon as the respondent locate such documents, it will be provided to the applicant.
c.Because of the procedural clarification given by Registry staff, applicant believed the information to be true and about the application of ethical principle while dealing with unrepresented litigants told by Michael O’Donnell in one of the case management hearing, applicant relied & believed that counsel or instructing solicitor will not take inappropriate advantage of any sort.
d.As these were procedural clarification that registry staff can provide and not a legal advice applicant relied on the advice, which now has been identified as untrue.
e.For the administration of fair trial and justice, the order for discovery is important.
Mr Mandhan purported to give evidence in support of this ground in paragraphs 9 to 14 inclusive of his affidavit. It appears that Mr Mandhan has been aware since April 2019 that there has been, what he contends, an incomplete response to the Notice to produce. As counsel for Toyota Finance put it, Mr Mandhan contends that he has been labouring under some misapprehension for two years preceding the commencement of the trial that Toyota Finance was still looking for things and that despite the repeated hearings between 2019 and the commencement of the trial, this matter had never been raised.
Counsel for Toyota Finance contends that the time to complain about an incomplete answer to the Notice to produce has now well and truly passed. He submitted that, in any event, there is no basis to contend that there has been incomplete production. Toyota Finance submitted that paragraph 2 of the Notice to produce has been responded to. In fact, the document produced, which both Mr Jensen and Mr Krooglik said they did not use, is SBM-41 to Mr Mandhan’s affidavit and exhibit A72 in the proceeding. Insofar as Mr Mandhan relies on his email dated 23 April 2019, SBM-40, counsel for Toyota Finance refers to the fact that the attached copy is said to be a “Novated Lease Application Form” which appears to have nothing to do with an income and expenses form.
With respect to paragraphs 1 and 3 of the Notice to produce, a verification checklist was produced by Toyota Finance and became exhibit A37. With respect to paragraph 4 of the Notice to produce, counsel for Toyota Finance submitted that there is not a document capable of being produced and that position has been consistently maintained by Toyota Finance. Furthermore, any such document has no apparent relevance to the issues in the proceeding. With respect to paragraph 5 in the Notice to produce, counsel for Toyota Finance submitted that it is not evident what further verification there is beyond exhibit A37, that is, what document is said to be missing that would form the basis of an application to re-open the case. I accept the submissions of Toyota Finance
The order sought in paragraph 3 of the Interlocutory application is as follows:
3.Order allowing applicant to make further discoveries based on document to be submitted as part of Notice to produce issued on 9/4/2019.
Reason
a. For the administration of fair trial and justice further discoveries are important.
b.Applicant could not make these discoveries due to believing in the procedural clarification given by registry staff about the process of making application to His Honour to get an order.
As counsel for Toyota Finance submitted, this order appears to be related to the orders sought in paragraphs 1 and 2 and not a stand alone order. I agree and it falls with the rejection of the orders sought in paragraphs 1 and 2.
The order sought in paragraph 4 of the Interlocutory application is as follows:
4. Order to return the oil sample to the applicant.
Reason
Applicant want to get the oil sample tested from authorised Lab and submit the test report, as the sample without the test report has no legal standing in court.
In my opinion, this order has no utility because there is no basis to tender any test report as the evidence has closed.
The order sought in paragraph 5 is as follows:
5.Order allowing applicant to make amendment to affidavits, statement of claim & originating application, which was not done properly even after receiving permissions from His Honour.
i.Also allowing applicant to make further affidavit with the discoveries that will be made with order 2 & order 3.
Reason for 5
a.The procedural clarification given by registry staff, when asked about, how to make changes to affidavit, statement of claim and originating application, applicant was told to make a request with His Honour and once permitted, applicant can draft a fresh affidavit with the changes and submit the same.
b.Applicant believed the procedural clarification given by registry staff as true and acted accordingly.
c.The actual process was to cross the error and all those paragraph that needed to be amended [for e.g.
“applicant submitted all the required document on 19/3/2016”]. All the amendment was made by submitting a fresh affidavit and the error in the actual affidavit was never crossed out.d.For the proper administration of justice and fair trial, applicant shall be allowed to correct the procedural mistake happened due to the procedural clarification given by registry staff.
e.As the affidavits will be incomplete and will require to include all the discoveries made as proof of evidence, this will require applicant to submit new affidavit to include the additional and corrected matter.
The submission in relation to this proposed order seems to be that Mr Mandhan should have the opportunity to go back and correct his affidavits. However, this misunderstands the effect of a prior inconsistent statement in that the very nature of the prior inconsistent statement was that it was made at the time. If the answer is that the witness was mistaken, then that was the answer he had the opportunity to give at the time he was asked about it. Counsel for Toyota Finance submitted that Mr Mandhan was given the opportunity in relation to the things that he says he wished to correct. Counsel submitted that:
… to now permit him to put further evidence-in-chief on explaining the earlier materials is not something that really emerges beyond the opportunity to comment that he was proffered while he was being cross-examined.
Those submissions are correct.
The orders sought in paragraph 6 of the Interlocutory application is as follows:
6.Order allowing to tender valuation copy by Mrs Poonam Singla along with feasibility report made by applicant.
i.Also ordering TFAL to submit copy of Veda credit check report, Idmatrix report and fraud score report, which as per TFAL they don’t have access to, which by law TFAL is required to securely save for 7 years from the date of assessment which is 21/3/2016 until 2/12/2023.
Reason for 6
a.The procedural clarification in the practice guide available on Federal Court website, which applicant relied, confirmed that, information relating to evidence mentioned in affidavit can be tendered at the time of trial.
b.In the same manner the commission document was submitted by Krooglik, which was only mentioned in affidavit and no record was annexed to any of the affidavit submitted by TFAL.
c.To make identification and valuation report of gemstone by Mrs. Poonam Singla, as per legal requirement, do not require qualification, registration or licence.
Reason for 6(i)
d.It was unlawful for TFAL to mention Veda credit check report, ldmatrix report and fraud score report in the list of documents submitted on 15/3/2021 under “document that have been but are no longer in the control of the respondent”.
e.Were TFAL is required to save and need to be in control of these document for a period of 7 years. This response by TFAL mentioned in (d) denied applicant access to such lawful document for the administration of fair trial.
The tendering of the valuation by Mrs Mandhan and the feasibility report of the applicant was the subject of a ruling which I made at the trial and I see no reason to revisit that ruling. Furthermore, there was no basis for an order for further discovery at that stage of the proceeding.
The order sought in paragraph 7 of the Interlocutory application is as follows:
7. Order to conduct retrial based on order 1, 2, 3, 4, 5, 5i, 6, 6i
Reason
a.For the fair administration of justice and for a chance of fair trial of the relevant case matter due to the misstatement of procedural clarification given by registry staff, which applicant believed is true and relied upon, has caused error in proper submission of affidavit, also:
b.In making application to Honourable court to get order to make the discoveries as part of Notice to produce issued on 9th April 2019, based on which further discoveries needed to be made to submit proof of evidence to show the fraud and conspiracy by TFAL and its agent.
c.For proper administration of justice and fair trial in the case matter, applicant asserts that a retrial will be important.
It is not clear that Mr Mandhan understands the difference between a retrial and a re-opening. In either event, there would be substantial prejudice to Toyota Finance if Mr Mandhan was allowed to recommence a substantial part of this proceeding. Furthermore, I note the submission of Toyota Finance that on the basis of Mr Mandhan’s own evidence, it is unlikely that the costs of this proceeding will be recovered should it be successful. In addition, there is prejudice in that at least one of Toyota Finance’s witnesses would have to give evidence again and that is Mr Jensen. There is no basis for a re-opening of Mr Mandhan’s case. He has had a full and ample opportunity to present his case.
Interlocutory application dated 21 September 2021
The order sought in paragraph 1 of the Interlocutory application is as follows:
1.Order for forensic examination of signature on the [exhibit R4] finance and insurance acknowledge or waiver form dated 27/5/2016, physical copy submitted by the respondent as evidence in court on 19/5/2021.
Reason
Applicant is confirmed beyond doubt that the signature on the waiver form does not belong to the applicant and applicant is of the believe that a forged document shall not be entertained to be submitted as crucial evidence to change the course of justice.
I have had regard to Mr Mandhan’s affidavit dated 21 September 2021. However, as Toyota Finance pointed out, Mr Mandhan not only gave evidence that he signed the document, but he gave evidence about the circumstances surrounding his signing of the document. That evidence was given in the trial and is referred to below. There is no basis whatsoever for making this order.
The order sought in paragraph 2 of the Interlocutory application is as follows:
2.Order TFAL to submit via an affidavit that PKT never had any customer application form in use in 2016, the content of the form similar to or alike the one that has been submitted via the affidavit made on and submitted on 16 July 2021.
Reason
Applicant has a very good possibility to get access to such customer application form which was is use by PKT is 2015 -2016 period only once PKT completely deny existence of such exact customer application form and such similar customer application form with the content exhibited in the affidavit submitted on 16 July 2021.
The blank form is exhibit A72 and the evidence of Mr Jensen at page 171.18 of the transcript for 20 May 2021 and of Mr Krooglik at page 230.45 of the transcript of 21 May 2021 was that that form was not used. Again, there is no basis for making this order.
THE EVIDENCE ADDUCED BY MR MANDHAN
Mr Sammar B Mandhan
Mr Mandhan is currently unemployed. Mr Mandhan said that he and his wife went to Peter Kittle Toyota at between 4.40 and 4.50 pm on 19 March 2016. They first saw Mr Shane Foster who was a sales representative. Mr Foster showed them a small mid-range car which was a Toyota Corolla. Mr Foster then took Mr and Mrs Mandhan to see Mr Jensen. This was done in response to a statement by Mr Mandhan that they were looking to buy under finance.
Mr Jensen told Mr and Mrs Mandhan that he could not tell them at that point whether or not a loan to them by Toyota Finance would be approved. He asked about Mr Mandhan’s income. Mr Mandhan showed him a copy of his payslip. Mrs Mandhan said that their expenses were in a range of between $2,600 and $3,300 per month.
Mr and Mrs Mandhan signed the contract for the new motor vehicle. Mr Mandhan claims that he was told that the contract was only an initial document which gave Peter Kittle Toyota permission to access the car he wanted and how much finance they were looking for. Mr Jensen obtained private details from Mr Mandhan. Mr Mandhan had signed a privacy statement and consent form.
Mr Mandhan said that Mr Jensen had a finance checklist which he went through. The document was tendered and became exhibit A3 (Finance Checklist). Mr Jensen asked Mr Mandhan whether he owned property, rented property or both. Mr Mandhan said that he rented property so Mr Jensen circled “that document” and said that Mr Mandhan needed “to bring the original copy of this document as well so that we can have a copy in the system”. The third matter in the Finance Checklist is as follows:
•IF RENTING — Current Rental Agreement or Rent Receipt.
Mr Mandhan said that he told Mr Jensen that he had only been renting his existing property for one year and one month. Mr Jensen said that in those circumstances he needed to provide the previous address and name of agent for the property Mr and Mrs Mandhan had previously rented.
Mr Mandhan said that there was a discussion about expenses and that Mr Jensen said that rather than a range, Mr and Mrs Mandhan had to identify a single figure. They identified a figure of $2,850 per month. Mr Jensen said that the figure should represent the average expenses for the last three months.
Mr Mandhan said that Mr Jensen told them that they needed to check their banking records and that they could provide the information on a different day. Mr Jensen gave them an income expenses form and said that they should “fill it up” and give it back to him.
Mr Mandhan subsequently emailed his payslip to Mr Jensen.
On 21 March 2016, Mr Jensen sent an email to Mr Mandhan advising him that the loan had been approved, although it required a $1,000 deposit for the approval to stand. Mr Mandhan responded almost immediately saying that “I will pay $1000 next week by the 30th of this month”. Mr Mandhan spoke to Mr Jensen on the telephone and Mr Jensen told him that they, that is Mr and Mrs Mandhan, were meant to submit the required documentation within 14 days so that the loan could be processed and full approval could be given.
Mr and Mrs Mandhan met Mr Jensen on 26 March 2016. He asked some questions about the income and expenses form. Mr Mandhan does not have a copy of the income and expenses form. That was given to Mr Jensen. He said that in addition to giving that document to Mr Jensen, he gave Mr Jensen the original copy of the lease agreement and his citizenship certificate. Mr Mandhan tendered his “Lease Renewal – Residential Tenancies Agreement” (exhibit A8) and his citizenship certificate (exhibit A9). After providing these documents to Mr Jensen, Mr Jensen told Mr Mandhan that the loan was now approved unconditionally.
Mr Mandhan paid the deposit on 30 April 2016. Mr Mandhan and his wife went to Peter Kittle Toyota on 6 May 2016 and met Mr Krooglik. They told Mr Krooglik that they no longer wished to purchase the Toyota Corolla and that they had seen an advertisement on the television showing a special offer for the RAV4. Mr Krooglik told Mr Mandhan that if his loan was not approved for the higher amount, then he stood to lose half of his deposit. Mr Mandhan said he was unconcerned about that. Mr Mandhan provided further payslips in relation to his employment. Mr Krooglik said that he would take Mr Mandhan’s details. He asked Mr Mandhan whether there were any changes in his details. Mr Mandhan said that there were no changes in his expenses and he told Mr Krooglik that he was residing in the same place. Mr Krooglik said that he would make the application and advise Mr Mandhan of the result. On 7 May 2016, Mr Mandhan was advised by Mr Krooglik that the loan had been approved. They made arrangements to collect the vehicle on 27 May 2016 and to complete the relevant paperwork. Mr Mandhan identified certain payslips that he sent to Peter Kittle Toyota.
On 27 May 2016, Mr Krooglik sat down with Mr Mandhan and took him through various documents. Some of the documents apparently wrongly referred to the Toyota Corolla and in one case to Mrs Mandhan (Pankajarra Mandhan). Mr Krooglik directed Mr Mandhan to the Loan Offer – Fixed Rate Loan (Loan Agreement) and the booklet of Terms and Conditions. Mr Mandhan said that he would read the booklet himself. Mr Mandhan said that Mr Krooglik was very clear in mentioning the information and reiterating that Mr Mandhan needed to read the booklet.
Mr Krooglik took Mr Mandhan through the loan application signed by Mr Mandhan and dated 27 May 2016 (exhibit A21). He took Mr Mandhan through the document. Mr Mandhan said the following:
He actually fingered and he was taking me through the whole thing from the start.
There was a discussion about the obligation not to submit any false documents. Mr Mandhan identified the booklet which became exhibit A22.
Mr and Mrs Mandhan then took possession of the motor vehicle.
Mr Mandhan said that they paid the deposit, took possession of the motor vehicle and started making repayments.
Mr Mandhan claimed that Mr Jensen, on 21 March 2016 when he entered details into the system, changed the details with respect to his accommodation status to “boarding with parents”.
Mr Mandhan claims that his expenses of $692 per week were changed to $452 per week. Mr Mandhan contends that the monthly figure is in the order of $3,110 when the weekly rental of $260 is taken into account. He denies that he asked Mr Krooglik to change the expenses from $692 to $452. Mr Mandhan gave evidence of his qualifications. He said that he has completed an MBA, a Master of Accounting and he has worked at a firm of a chartered accountant. Mr Mandhan said that his mother had never visited Australia.
In September 2016, Mr Mandhan was diagnosed with a medical condition. According to a medical report, Mr Mandhan had a very large left hydrocele which developed over the last six months. He reported to his medical practitioner that he was experiencing some pain in the left iliac fossa region “in the last about 4 weeks which has made seek help”. He was admitted to the Lyell McEwin Hospital in October 2016 after his condition escalated. It was suggested that he have an operation done privately which would cost in the order of $3,000.
Mr Mandhan said that from that point onwards, his wife started performing massages on him. She had done two courses, one in 2015 and one in 2016, to “start her practice” and then she “got” registered into the Massage Association. Mr Mandhan said that in addition, they were planning to start their therapeutic formula to launch into the market. His wife obtained a Doctor of Philosophy in 2008. Mr Mandhan said his wife knows how to use different herbs for making different things. She knew how gemstones may be used and she knows how to make a remedy with gemstones. Mr Mandhan produced a number of gemstone identification reports of Ramesh Kumar in India, all bearing a date in 1996 and relating to rubies and sapphires. These are the gemstones which Mr Mandhan said were their assets and they were using (or intending to use) to create income to start “our other income generation activities”. Mr Mandhan said that the gemstones were very valuable and the gemstones were used to treat Mr Mandhan’s illness or injury. They were ground down into ash and have been effectively consumed.
Mr Mandhan produced a consolidated invoice from 1 November 2016 to 28 October 2018. It is from his wife and it is dated 6 November 2018. Mr Mandhan agreed that this was a bill that his wife had delivered to him and included gemstone infused oil massage for 730 days at a price of $5,190,300. In addition, there is a charge for full body herbal massage for 730 days of $57,966 making an overall total of $5,248,266. Mr Mandhan said that this was surgery that he could not get done because of the pre-payments he was making to Toyota Finance. Mr Mandhan said that his wife used to give him a massage for seven hours every single day. The unit price is said to be $395 for a 20 minute massage using the gemstones which had been reduced to ash and infused in some way with herbal massage oil (exhibit A35).
Mr Mandhan also produced another document which seemed to be in similar terms. This document was, according to him, his wife’s rough estimation of what could be the estimated value of the gemstones that she had used in infusing into the oil. That valuation was a total of $600 million, being $594 million for 60 rubies and $6 million for 15 sapphires.
Mr Mandhan produced a document entitled “CCC Compliance Checklist” dated 30 May 2016 and signed by Ms Brooks. He said in his evidence that Mr Krooglik completed this document in front of him on 27 May 2016. Mr Mandhan tendered a document entitled “How is My Equifax Score Calculated?”. This document indicates that it has a relationship with Veda and Mr Mandhan referred to the ATLAS computer program document which said that he had a Veda score of 498. This put him in the group of people between 400 to 500 and classified as bad. Average is 550.
Mr Mandhan was informed by Mr Foster on 9 May 2016 by SMS message that the loan had been approved.
Mr Mandhan said that his wife was the actual owner of the gemstones, but that she had given them to him for the purpose of sale and “to maintain it”. He gave the gemstones back to her and told her to do what she had to do and he would make sure that she was repaid for them. All of the gemstones have gone. They were reduced to ash and used in herbal oil in 2017, 2018. It seems that Mr Mandhan’s hydrocele developed into a epididymal cyst.
Mr Mandhan produced pages from his bank account at the National Australia Bank for the period from 24 November 2017 to 23 January 2018. The document is partly redacted. Mr Mandhan said that he and his wife experienced extreme financial hardship and that for a period of two months, his expenses on food were only $80.76 which is $1.34 for two persons for a day or 67 cents per person for a day. Mr Mandhan was not working at this stage and he was receiving treatment from his wife. Mr Mandhan said that the gemstones were reduced to ash between 2 November 2016 and December 2017. He said that his wife’s health was deteriorating as well. Mr Mandhan put forward various documents in support of his position of financial hardship and medical problems. Surgery was performed on Mr Mandhan on 28 August 2018 to alleviate his medical condition.
Mr Mandhan said that he contacted Toyota Finance about his financial hardship in about January and February 2018. He said that this was the first time he went through his documents and he saw the statement that he was “living with parents”. After this, he sent a complaint to the Complaints Department and he received a response on 3 August 2018. The Complaints Department at Toyota Finance interpreted his complaint as a complaint that he was misled into purchasing an extended warranty, a complaint that the finance manager misrepresented his employment status and his living circumstances and a complaint that he was not offered loan payment protection insurance. The response to Mr Mandhan’s complaint states the following under the heading “Living circumstances”:
You stated the Business Manager at Peter Kittle Toyota misrepresented key information such as your employment status and living circumstances to attain a favourable decision on your application for finance.
TFAL confirms you have provided a tenancy agreement to support your claims regarding your living conditions at the time of purchase. Please find attached a copy of the loan application presented at the time of purchase. TFAL notes you have signed the application declaring the information provided in the application to be accurate and that false information has not been intentionally provided to enable you to obtain credit.
The response also said under the heading “Insurance eligibility” the following:
You may only apply for Toyota Insurance Finance Protection policy at the commencement date of your finance contract. One of the conditions to be eligible to apply for this insurance is, at the commencement date you must be in permanent and gainful employment for a minimum of 16 hours per week, and have no knowledge that your permanent and gainful employment is to be terminated when you apply for your finance contract.
Based on the information you have provided, you [sic] employment status was not permanent therefore you would not have been eligible to apply for a Toyota Insurance Finance Protection policy at the time of purchase.
Mr Mandhan interpreted the first of these passages as supporting his case that he gave the rental agreement to Mr Jensen on 26 March 2016. I will come back to address this point and also to indicate the relevance of the second passage set out above.
Mr Mandhan then went to the Financial Ombudsman Services.
Mr Mandhan gave evidence with respect to the Cross-Claim. By way of background, I note that in Mandhan v Toyota Finance Australia Limited [2019] FCA 2124, I said the following (at [5]):
Mr Mandhan raised two matters. First, he contended that Toyota Finance could not bring their cross-claim seeking payments under a loan agreement because it had agreed not to seek payment of the required monthly repayments until Mr Mandhan had obtained employment. That agreement was reached during a telephone conversation on 27 September 2018 between Mr Mandhan and an employee of Toyota Finance. The agreement means, so Mr Mandhan contends, that he had not failed to make monthly repayments under the loan agreement and Toyota Finance is unable to bring enforcement proceedings against him. The response by Toyota Finance assumes that the conversation alleged by Mr Mandhan took place. Toyota Finance submits that an agreement to cease making direct debits on his account is quite different from an agreement not to enforce Mr Mandhan’s obligation to make monthly repayments. In order to make an order for summary dismissal or judgment of a claim, the Court must be satisfied that there is no reasonable prospect of the proceeding being successful (Federal Court of Australia Act 1976 (Cth), s 31A). I agree with the submission made by Toyota Finance that the position is not sufficiently clear for an order to be made for summary dismissal of judgment of its cross-claim and the matter Mr Mandhan raises is a matter for trial.
Mr Mandhan said in evidence that what he was told was that Toyota Finance would put his “payments on hold till you get back to work. Till then you don’t have to make any payments”. He also appeared to suggest that he was told by the person to whom he spoke (one Ankit Gulati from the Complaints and Resolution Department) that he would revoke the default letter which had been issued to him.
Mr Mandhan said that after that in the month of March, he received a letter of default from Thomson Geer. A little later in his evidence, Mr Mandhan stated quite clearly that Mr Gulati had said that he was revoking the default notice. He said that he did not receive a default notice “from September onwards” and in his mind that confirmed what he had been told by Mr Gulati. The telephone call is recorded on the USB stick containing recordings of various telephone conversations (exhibit A58). There are seven or eight telephone calls on the USB and Mr Mandhan invited me to listen to the telephone call on 27 September 2018 and the telephone call on 24 August 2018.
On 4 March 2019, Thomson Geer on behalf of Toyota Finance sent a default notice to Mr Mandhan dated 1 March 2019.
With respect to his claim for loss and damage, Mr Mandhan said that his wife did two courses in massage, one in December 2015 and the second in July 2016. In February/March 2016, Mr Mandhan’s wife asked him to do a feasibility study for the project with respect to sugar and also for his wife’s other business in starting up health and wellbeing centres in Australia and India. He said that at that time, they had already started “the process of starting our income generation activities”. At about this time, Mr Mandhan’s wife valued the gemstones.
Mr Mandhan gave evidence that there was fraud and deceit on the part of not only Mr Jensen and Mr Krooglik, but a number of other persons in Toyota Finance, including persons who had approved the loan and Ms Regina Brooks. He said that these persons worked as a team to cause damage to him and that they intended to cause damage to him. He suffered financial hardship and over a period of two months, he and his wife had only 67 cents per day to spend on a meal. This was all due to the “deliberate and wilful actions of TFL [sic] staff and the business manager”.
Mr Mandhan said that he told Mr Jensen that he was renting and Mr Jensen asked him to submit the rental agreement which he did on 26 March 2016. Mr Mandhan said that any approval given on 21 March 2016 was only a conditional approval because the lending assessors only had part of the information. They did a preliminary assessment based on the benchmark amount and they used a figure of $2,300 per month. The monthly expenses based on an average for 90 days was $3,120. Mr Mandhan contended that Mr Krooglik knew that Mr Mandhan’s rental agreement was “in the system” and that he nevertheless changed the monthly amount from $692 to $452. Mr Mandhan contended that Mr Krooglik knew that he had made a “fraudulent representation” when he told Mr Mandhan that his loan had been approved. Mr Mandhan contended that the “credit assessor” (i.e., lending assessor) knew that the information upon which he approved the loan was false.
This then was the evidence-in-chief of Mr Mandhan. He was then cross-examined by counsel for Toyota Finance.
Mr Mandhan said that for personal reasons, he changed his name from Cecil Thomas to Rayhan Arvin Thomsan in May 2014. He said that his personal reasons were between himself and his wife. He changed his name from Rayhan Arvin Thomsan to Sammar B Mandhan on 6 February 2018. Mr Mandhan’s birth name was Cecil Thomas. The change of name certificate records the surname at birth or on adoption and given names at birth as “unknown”.
Mr Mandhan agreed that he was having financial difficulties as at 6 February 2018. He agreed that he received a default notice from Toyota Finance in February 2018 and that it was not until October 2018 that he told Toyota Finance of his change of name. A little later, he suggested that his wife had put aside funds to effect the change of name and that she was the one who felt that it needed to be done. A little later again, he said that health difficulties were why he changed his name. His evidence was confusing and unconvincing.
He said that financial difficulties played no part in his decision to change his name in 2014.
Mr Mandhan said that he moved to Australia towards the end of March in 2002. Mr Mandhan said that he had a Bachelor of Commerce from the Andhra University in India which he obtained in 1999. He enrolled in Australia in a Master of Accounting. He completed that qualification. He said that he did various periods of employment involving accounting and bookkeeping.
Mr Mandhan agreed that he calculated the monthly expenses of himself and his wife between November 2015 and March 2016 at $3,120 per month. He explained the relatively high expenses on the basis of the expenses incurred in connection with the feasibility studies and investigations into the proposed projects. Mr Mandhan agreed that he could calculate the repayments which would need to be made and whether he and his wife could afford to make them for the finance on the motor vehicle. He said that they had no issues in making payments until December, and then there were health issues. Mr Mandhan said that he did his simple calculations and understood that if his loan was approved, then he could make the repayments.
Mr Mandhan agreed that one of the losses he was claiming related to the gemstones that his wife inherited. They are the basis for the invoices totalling $605 million that he seeks to rely on for the purposes of this proceeding. He said that his wife had had the gemstones for quite a long period of time. She did an assessment of the gemstones in 1996. As at February 2016, Mr Mandhan and his wife were proposing to sell one of the gemstones which his wife valued at $2 million. They had spoken to various auction houses. They were not interested in sending the stones interstate. Mr Mandhan, when asked whether his wife sold him the gemstones in 2016, said that his wife handed him the position because they were in a joint partnership and they wanted to do everything “as per legally”. He said that his wife transferred the gemstones onto him for the purposes of sale. At one point, he said the rubies were at 730 carats, then he said that he was confused and he could be right or he could be wrong. It was suggested to him that a 15 carat stone was a very large stone and he agreed with that. Mr Mandhan referred to a stone on his person which was worth $50,000. Mr Mandhan said that his wife had always told him that the gemstones were very valuable and had “medicinal properties and values as well”. He was asked about his evidence that the gemstones were worth in the order of AU$1.5 billion. As I understood his evidence, it was that this was an approximate value, but represented what they believed the value to be. Mr Mandhan eventually agreed with the proposition that when he walked into the Peter Kittle Toyota dealership in March 2016, he believed that he had gemstones worth $1.5 billion. Mr Mandhan said that he valued the lost business opportunities at $600 billion. Mr Mandhan agreed that in December 2016, he and his wife were planning to sell one gemstone for $20 million which after 40% commission had been deducted, would yield a net amount of $12 million to his wife and himself. Mr Mandhan was asked why he could not have afforded the surgery in late 2016 at a cost of $3,000 to $4,000 in light of the yield of $12 million from the sale of a single gemstone. He said that because of his health issues, he could not travel to Melbourne or Sydney to sell the stone. He then gave some very confusing evidence about a conversation he had had with a jeweller about the sale of the gemstone to that jeweller. I do not accept Mr Mandhan’s evidence. I consider that it is untrue. I do not believe his account as to the existence or value of the gemstones.
Mr Mandhan was taken to an affidavit he affirmed on 28 November 2018 in which he claimed as an item of loss, the following:
Unpaid dues to be paid to the therapist for the continuous service provided to maintain the health of the deponent, which equates to $1,899,999.
The therapist referred to was Mr Mandhan’s wife. She had rendered a “consolidated invoice” approximately three weeks earlier on 6 November 2018 for massages totalling $5,248,266. Furthermore, there is an “invoice” for $600 million also dated 6 November 2018 . Mr Mandhan said that when he affirmed his affidavit, he based his figures on “a hunch” and he forgot to look at the invoices that had been made. I do not accept that evidence. In my opinion, it is untruthful.
Mr Mandhan was asked about the redactions he had made to his bank account statement from the National Australia Bank (NAB) for the period between 24 November 2017 and 23 January 2018. The two page bank statement shows total credits of $7,652.02 and total debits of $7,484.36. The entry details have been redacted. It was put to Mr Mandhan that he had deliberately redacted the entries so that his evidence that he was living on $1.47 per day was not contradicted. I did not find his evidence about the redactions to be satisfactory. He did not provide a plausible explanation for the redactions. He was taken to the NAB statement for the period 24 January 2018 to 23 March 2018 and he agreed that he had produced that document without any redactions. He was taken to an ANZ Bank payment summary and it was put to him that there were no redactions of any of the transaction details. Mr Mandhan agreed that the only redactions to the bank statements were to the NAB statement for the period 24 November 2017 to 23 January 2018. Mr Mandhan was asked whether he agreed that by identifying only the NAB account and redacting the receipts of $7,652.02 and not identifying his wife’s account, he has presented a misleading picture. He disagreed with that proposition. Counsel for Toyota Finance called for unredacted copies of the NAB statements and the bank statements of Mrs Mandhan for the period 24 November 2017 to 23 January 2018.
Mr Mandhan agreed that he had signed a contract to purchase the Toyota Corolla on 19 March 2016 and that Mr Jensen had told him on that day that he could not say whether or not the loan from Toyota Finance would be approved. Mr Mandhan’s evidence was that Mr Jensen told him at the time that he was just signing a sales contract. It gave Peter Kittle Toyota or Toyota Finance the opportunity to do a finance check and come back to him and indicate its position. Mr Mandhan said that his belief was that when he signed the sales contract and the privacy document “it only gives permission to Toyota Finance to verify whether they can give me finance or not”. Mr Mandhan said that the sales contract did not oblige him to purchase the vehicle and he referred to the sales contract itself. He then said that Mr Jensen told him that the signing of the document did not give rise to any obligation. I do not accept Mr Mandhan’s evidence on this topic and, in particular, the following evidence given by Mr Mandhan:
Can I suggest to you that Mr Jensen said no such thing to you as, “You don’t have to worry, because it’s only an initial document which gives Peter Kittle Toyota permission to assess what car and how much finance”. He never said that, did he?---He said that. Well, that’s how he got me signing this document. He said, “This is what it gives”. He said, “This document needs to be signed so that you will – you’re giving us permission to do a credit check and assess your credibility”.
(See exhibit A1, the sales contract.)
Mr Mandhan said that Mr Krooglik on 30 March 2016 in his office responded to a question by him about finance protection insurance by saying that Toyota Finance was not a bank and “more over we are able to offer better rates than bank”. He said that on 27 May 2016, he again asked Mr Krooglik about finance protection insurance and Mr Krooglik again gave the earlier response “listening to the response deponent realised that deponent has asked the same question earlier”. Mr Mandhan agreed that as at 30 March 2016, he was dealing with Mr Jensen. He said that he asked Mr Jensen about finance protection insurance on 30 March 2016 in Mr Jensen’s office. Mr Jensen called in the business manager from the other room and that was Mr Krooglik. Mr Jensen asked Mr Krooglik to explain to Mr Mandhan that he was getting a better interest rate than the banks offer and that they did not do finance protection insurance. Mr Mandhan agreed that he had made some mistakes in his affidavit. The conversation took place in Mr Jensen’s office after Mr Mandhan had asked Mr Jensen. The second conversation occurred on 26 March 2016 and not 30 March 2016.
Mr Mandhan was asked about the Statement of Claim he filed on 19 October 2018 (exhibit R2). He was asked about the reference to Mr Krooglik from Peter Kittle Toyota, who was the finance manager with whom Mr Mandhan was dealing, telling Mr Mandhan that Toyota Finance is a private entity and not a bank and, therefore, they did not offer finance protection insurance. Moreover, Mr Mandhan was told that he had received the loan at a very good interest rate which is not available with banks.
Mr Mandhan agreed that the issue concerning finance protection insurance was raised by him at that stage, but left that out in his further affidavits.
Mr Mandhan was taken to exhibit R4 which is a document entitled “Finance & Insurance Acknowledgement or Waiver” (Acknowledgement or Waiver). He agreed that he signed the document. It was put to him that the document which he signed, being exhibit R4, was manifestly inconsistent with a statement that Toyota Finance did not offer finance protection insurance. He said that he did not remember the document, but he did agree that he had signed it. He agreed that he had put the issue about finance protection insurance in his first affidavits. Then he started reading the law and understanding exactly how things work and he concluded that he should not be pursuing this issue. When he contacted Toyota Finance and asked them whether they offered finance protection insurance, he was told that they did. He was told that he could not get the insurance because he worked as a casual employee. Then he appeared to say that he abandoned this issue because he had no recording that the conversation had taken place.
Mr Mandhan agreed that Mr Jensen was taking notes during the meeting on 19 March 2016. He said that Mr Jensen gave him a four page form which he filled out and returned on 26 March 2016. Mr Mandhan was taken to paragraph 1 of the Statement of Claim filed on 19 October 2018 which is as follows:
1.Application form for loan approval was filled and submitted to TFAL along with proof of identity, payslip & lease agreement along with utility bill via its agent PKT initially on 19th March 2016.
Mr Mandhan said that this allegation was wrong and that it was on 26 March 2016 that he submitted “all the documents”. He said that there was a mistake and that it was a genuine one. He referred to the mistake as a typing error. He said that he did not know how to draft “a proper affidavit of statement of claim” and that this was a genuine mistake. I do not accept this evidence. I do not see how his understanding about the nature of the document was at all relevant to the particular statement he made. It was suggested to Mr Mandhan that he never provided a rental agreement to Toyota Finance, whether on 19 March or 26 March 2016. Mr Mandhan was asked about evidence-in-chief which he gave. Mr Mandhan referred to a telephone call he said he made on 19 March 2016 to the number xxxx xxx x39 (see exhibit A5). He said in his evidence-in-chief that that telephone record shows that he called Mr Jensen after sending the payslip to confirm that Mr Jensen had received it. Mr Mandhan agreed that, in fact, what occurred was that he saw Mr Foster, the salesman, through the window standing next to Mr Jensen and he called Mr Foster and asked to be put onto Mr Jensen. He then advised Mr Jensen that the payslips had been sent. He denied that he was making the evidence up.
Mr Mandhan was taken to Mr Jensen’s email message to him on 21 March 2016 and he said that, although no mention of the loan being conditional (other than the payment of the deposit) is made in that email, Mr Jensen told him over the telephone that approval was conditional and the condition was that the relevant documents be submitted within 14 days. It was put to Mr Mandhan that he had fabricated the conversation with Mr Jensen to the effect that the loan was conditional despite the email because he, Mr Mandhan, realised that the email is inconsistent with his case that he was required to produce documents which he did on 26 March 2016, some five days after the email.
Mr Mandhan was questioned about the difference between the details he provided about the occasion upon which he met Mr Jensen and provided the rental agreement and income and expenses form to Mr Jensen in his affidavit affirmed on 12 March 2019 and in his evidence at the hearing. In his affidavit affirmed on 12 March 2019, Mr Mandhan said the following:
14.Sometime in between 23rd March 2016 to 17th April 2016 all the remaining documents mentioned in finance checklist and income and expenses form was submitted to Mr. Jensen, most probably on or before 30th March 2016.
Mr Mandhan’s evidence to the Court was that he met with Mr Jensen on 26 March 2016. He provided documents to Mr Jensen, including the rental agreement and the income and expenses form. He asked about finance protection insurance. He was told by Mr Jensen that his loan had been approved unconditionally. Mr Mandhan’s evidence was unclear as to whether he had forgotten the details at the time he affirmed his affidavit and that was the reason those details were not in the affidavit, or he had consciously decided not to include that information in that affidavit because of an understanding he had as to the level of detail which should be included in an affidavit. Again, his evidence was unconvincing.
Mr Mandhan was asked about statements he made in his affidavit affirmed on 28 November 2018. Those statements were said to relate to the wilful deceit by Toyota Finance’s agent as to the completion of the income and expenses form. Mr Mandhan said the following:
b.Deponent while filling the income and expense statement manually, asked the business manager from PKT that, as the deponent is the only income earner and his partner is currently dependent on the deponent, how do the deponent show the relevant expenses and in which column.
c.Deponent was told by the business manager from PKT that as deponent is the one who is putting in the application for loan and there is no secondary applicant on the loan application form, deponent only needs to show only those expenses that he did onto to himself.
Mr Mandhan did not pay any monthly instalments pursuant to the loan variation and on 4 March 2019, Toyota Finance caused a notice of default dated 1 March 2019 to be left at Mr Mandhan’s last known address informing him of the default and requiring him to remedy the default by 5 April 2019.
Ms Sihaphone produced a copy of the notice of default and a true copy of the service report received in respect of service of the notice of default.
Mr Mandhan failed to remedy the default by 5 April 2019 and has not remedied the default at all.
FINDINGS AND CONCLUSIONS WITH RESPECT TO THE CLAIM
Later in these reasons I will deal with Mr Mandhan’s claim for loss and damage, including his evidence with respect to the gemstones, whether they existed, whether they were of the value alleged (i.e., approximately $1.5 billion), why they, or at least one of them, was not sold to relieve Mr Mandhan of his financial difficulties and to pay for medical treatment for Mr Mandhan and why were they crushed or reduced to ash and put in ointment and used to treat Mr Mandhan’s medical condition. That evidence was incredible, that is to say, it is not capable of giving rise to a rational belief in its correctness. I reject it in its entirety. Furthermore, as counsel for Toyota Finance submitted, it is like the thirteenth strike of the clock, that is, not only wrong in itself, but also such as to throw doubt on all that has gone before (John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at [5] per Gleeson CJ). In this case, that is all of the relevant evidence given by Mr Mandhan and his wife about the events leading up to the alleged loss and damage. I do not accept any of the evidence given by Mr Mandhan or his wife except where it is unchallenged or supported by evidence which I do accept.
Having said that, even if I put the evidence with respect to loss and damage to one side, I reject Mr Mandhan’s case for the reasons I now give that Toyota Finance engaged in any conduct in relation to the loan agreement which was fraudulent or constituted a misrepresentation or was misleading or deceptive or was otherwise such as to give rise to a cause of action or claim in Mr Mandhan’s favour.
Loan Protection Insurance
Mr Mandhan’s evidence was that Mr Krooglik said to him that Toyota Finance was not a bank and that it did not offer finance protection insurance. Both Mr Jensen and Mr Krooglik said in their evidence that they had never made such a statement to a customer and Mr Jensen added that the statement did not make sense.
I find on the basis of the evidence of Mr Jensen and Mr Krooglik that Toyota Finance offered loan protection insurance at the relevant times, subject to certain groups being ineligible, including those in casual employment and certain restrictions relating to existing medical conditions. The documentary evidence by way of the Acknowledgement or Waiver (exhibit R4) which refers to loan protection on the list of “Product Offered” supports this conclusion.
Mr Mandhan was in casual employment at the relevant times and was ineligible for loan protection insurance. To establish a case of misrepresentation causing loss and damage, Mr Mandhan would need to establish that he was entitled to loan protection insurance and would have taken it. This he cannot do.
In any event, I do not accept that Mr Mandhan was told that Toyota Finance was not a bank and did not offer loan protection insurance. A general statement that Toyota Finance did not offer loan protection insurance would clearly have been untrue and would have been known to be untrue. Furthermore, Mr Krooglik, at least, would have known that the Acknowledgement or Waiver (exhibit R4) which he designed and had Mr Mandhan sign, shows that such a statement as a general statement is untrue. There would be no reason for him to make such a statement and, in fact, as a general statement it would be contrary to his (and Peter Kittle Toyota’s) financial interests to do so as they earn commissions on the financial products sold, including loan protection insurance.
As I have said, Mr Mandhan accepted that he signed the Acknowledgement or Waiver, although it appeared he sought to resile from that position as evidenced by the orders he sought in his Interlocutory application dated 21 September 2021. Not only did he admit that he signed the document, but he also gave evidence about the circumstances surrounding the signing of the document.
On the other hand, Mrs Mandhan gave evidence that the signature on the document was not her husband’s signature and was a forgery. I do not accept that evidence.
Accommodation Status
The documentary evidence in this case is to the effect that Mr Mandhan agreed to purchase a Toyota Corolla Ascent motor vehicle for $22,990 on 19 March 2016. That appears to be the effect of the document entitled “Contract/Tax Invoice for the Sale of a New Motor Vehicle” (exhibit A1). There does not appear to be any notation on that document to indicate that the contract was subject to finance. That contract did not proceed and Mr Mandhan purchased and took delivery of a Toyota RAV4 GX-2WD for $32,290 or $31,290 after a credit for a deposit of $1,000. The “Retail Tax Invoice” for this is dated 27 May 2016 (exhibit A17).
In terms of the loan, there are two “Loan Applications” in evidence. The first is undated and unsigned and it refers to a five year loan in a total amount of $29,470.80 including interest. Aspects of Mr Mandhan’s personal details are recorded, including that his accommodation arrangements were “Living with parents” with a monthly rental of $1. The document has what appears to be a stamped addition which includes a date of 30 April 2016 and a reference to Mr Jensen as the “Contact” (exhibit A56).
The second loan application is dated 27 May 2016 and signed by Mr Mandhan. It refers to a five year loan in a total amount of $39,576 including interest. Again, aspects of Mr Mandhan’s personal details are recorded, including that his accommodation arrangements were “Living with parents” with a monthly rental of $1. Again, the document has what appears to be a stamped addition which includes a date of 27 May 2016 and a reference to Mr Krooglik as the “Contact” (exhibit A21).
The Loan Agreement is signed by Mr Mandhan on 27 May 2016 and by Ms Regina Brooks on behalf of Toyota Finance on 30 May 2016. The total amount of the loan is $39,576, including interest and it is repayable over five years. The Toyota RAV4 is security for the loan (exhibit A17). The Standard Terms and Conditions for a Consumer Fixed Rate Loan Contract (exhibit A22) contains clauses to the effect that the full amount becomes due in the event of default in repayments and notice from Toyota Finance and that in such circumstances Toyota Finance may repossess the motor vehicle (exhibit A22).
Toyota Finance’s ATLAS computer records indicate that on 21 March 2016, Ms Jupp, a lending assessor at Toyota Finance, approved the first loan application subject to a change to income and a request for a deposit of $2,000. The records also indicate that on 6 May 2016, the total amount financed was changed from $25,061.80 to $33,461.80 and that the loan was subsequently approved by (it seems) Mr Gigos (exhibit A23).
In an email on 21 March 2016, Mr Jensen advised Mr Mandhan by email that the loan had been approved, “however requires $1000 deposit for this approval to stand” (exhibit A6).
Mr Mandhan produced a single page document said to be a lease renewal for the premises identified in the loan application and recording that he and his wife were renting the premises at a rent of $260 per week from 27 February 2016 to 26 February 2017. Clearly, an obligation to pay rent of that order would affect Mr Mandhan’s capacity to repay any loan he secured.
Mr Mandhan’s case is that in a telephone conversation after the email from Mr Jensen on 21 March 2016, Mr Jensen asked him for documentation, including a rental agreement and an income and expenses form, and that he provided that documentation on or about 26 March 2016. I do not accept that evidence for the reasons set out below. Toyota Finance’s case is that Mr Mandhan said to Mr Jensen and Mr Krooglik on separate occasions that his accommodation status was living with parents and he did not say that he was paying rent.
It is convenient at this point to refer to exhibit A65 which is a Toyota Financial Services Guide published on 8 February 2016 and titled:
Retail Finance & Insurance Sales Guide
This document is a guide to those working at a dealership who have been appointed as an agent for Toyota Finance. The guide details Toyota Finance’S standard sales process for dealing with all customers. It contains provisions dealing with residential status which is defined to mean five separate categories of “Home Owner, Home Purchaser, Renter, Boarder or Living with parents”. A little later, the guide sets down the verification requirements for proof of residence. They are as follows:
•Home Owner – Council rates notice showing current residential address
•Home Buyer – Council rates notice or mortgage statement showing current residential address
•Renter – Tenancy agreement or rent receipt showing current residential address
•Boarder/Living with parents – Confirmation of the stated current residential address in the form of a driver’s licence or a document issued to the customer at the address such as a mobile phone statement or bank statement no older than 3 months.
There is a piece of objective evidence that supports, or tends to support, Mr Mandhan’s account that he told Mr Jensen that he was renting and that he did not tell him that he was living with parents. The evidence is the Peter Kittle Toyota “Finance Checklist”. The document contains 11 dot points under the subheading of:
What we need to do your finance
Of the 11 dot points, the following three dot points are circled:
•IF RENTING – Current Rental Agreement or Rent Reciept [sic]
…
•CURRENT PAYSLIP WITH YTD x 2
…
•BSB & ACCOUNT number For Direct Debit
The Finance Checklist has printed dot points relating to four out of the five categories of residential status (i.e., Home Owned or Mortgage, Renting and Boarding). It does not have a printed dot point for the residential status of living with parents, although it is to be noted that the verification requirements for proof of residence (as per exhibit A65) are the same for “Boarder/Living with parents”. The fact that the renting dot point is circled suggests that the matter was considered relevant. The document has at the end of the dot points Mr Jensen’s name in typewritten form together with reference to his position as Business Manager.
As I have previously said, Mr Jensen did not recognise Mr Mandhan and nor did he recall any dealings that he had with him. Mr Jensen was cross-examined about the Finance Checklist. He agreed that the document is from Peter Kittle Toyota at the time that he was working for that business. Mr Jensen said he had no recollection of the document. He said that at the time “these documents were put into a dealer pack that a customer would get, so, for example to advise them to bring in their rego papers, referees, that type of thing”.
Mr Jensen had no recollection of circling various dot points in the document. He said that he never used the document as he used his notebook and that he would advise them (i.e., customers) what they needed to bring in prior to “coming in for a delivery or before that”.
Mr Jensen agreed that if a person came in who was renting, then there was a requirement to obtain the lease agreement to verify their rental period and their rental amount.
I have previously referred to the ATLAS record which is exhibit A23. There is an entry in that record for 21 March 2016 to the effect of “Boarding with parents”.
There are six reasons which, considered together, lead me to conclude that Mr Mandhan told Mr Jensen (and later Mr Krooglik) that he was “living with parents” and did not tell him that he was renting.
First, subject to the payment of a deposit, the loan was approved on 21 March 2016. It would be odd if Mr Jensen arranged for Mr Mandhan to provide him with the rental agreement and there were arrangements for that to be done on 26 March 2016 and yet the loan was approved on 21 March 2016.
Secondly, there does not seem to be a plausible or sufficient motive for Mr Jensen to falsely state in the loan application that Mr Mandhan was living with parents, particularly when one has regard to the small commission he received on the completion of the transaction.
Thirdly, if Mr Mandhan’s case is correct, it would seem odd, to say the least, that Mr Jensen, knowing that he was going to falsely state that Mr Mandhan was living with parents, would at the same time ask Mr Mandhan to produce the rental agreement. That is Mr Mandhan’s case and to my mind it is improbable.
Fourthly, Mr Krooglik provided the same information in the loan application dated 27 May 2016. Mr Krooglik said that it was his practice where the loan application was to be varied to, in effect, start again in terms of obtaining the relevant information. I accept that evidence. The probabilities are that he did not rely on what Mr Jensen had put in the first loan application, but started afresh and obtained the information from Mr Mandhan. It follows that either Mr Mandhan told Mr Krooglik that he was living with parents (as he had to Mr Jensen) or Mr Krooglik and Mr Jensen decided, either together or separately, to misrepresent precisely the same matter. The latter, to my mind, is highly improbable and the former is the correct explanation of what occurred.
Fifthly, Mr Mandhan signed the loan application dated 27 May 2016 and in that loan application, there is a statement to the effect that he was living with parents. Mr Krooglik, on any view of the evidence, went through the documents carefully with Mr Mandhan and I consider that Mr Mandhan would have seen and commented upon the information if living with parents was incorrect.
Finally, the evidence of Ms Sihaphone was that she had reviewed Toyota Finance’s file in relation to the loan application and there is no record of a rental agreement being provided at the time of the loan application. The letter from Toyota Finance dated 3 August 2018 (see [82] above) and Mr Mandhan’s telephone conversation on 24 August 2018 does not prove the contrary because by that time he had given Toyota Finance a copy of the rental agreement (see [121] above).
When these matters are considered together, they give rise to a compelling case that Mr Mandhan told Mr Jensen and later Mr Krooglik that he was living with parents. Precisely how or for what purpose the Finance Checklist was prepared remains unclear, but the weight of the evidence that Mr Mandhan told Mr Jensen and later Mr Krooglik that he was living with parents is overwhelming.
Employment – Full Time or Casual
Mr Mandhan was at the relevant times a casual employee. He was shown as such in both loan applications, including the second loan application which he signed on 27 May 2016 and which formed the basis of the Loan Agreement. If there was any misstatement as to Mr Mandhan’s employment, it was not causative of any loss and damage.
It appears from the documents that at the very outset there was a misunderstanding as to Mr Mandhan’s employment status. A Toyota Finance document entitled “DecisionPoint 3” appears to be a summary from time to time of Mr Mandhan’s loan application starting on 21 March 2016 at 9.56.24 am and ending on 30 May 2016 at 3.54.54 pm. There are seven such summaries and, except for the first where he is said to be a full time employee, he is shown as a casual employee starting with the second on 21 March 2016 at 11.16.24 am.
The ATLAS computer program record of Toyota Finance shows that this error or mischaracterisation of Mr Mandhan’s employment was picked up “change to casual” by Ms Jupp and recorded in the records at about 10.17 am on 21 March 2016.
The mischaracterisation of Mr Mandhan’s employment had no effect on the decision-making or the transactions which followed.
Alleged Understatement of Expenses
As I understand it, Mr Mandhan claims that Toyota Finance understated his expenses.
In the first loan application, Mr Mandhan’s General Living Expenses were recorded as follows:
1.
General
$350
2.
Education
$1
3.
Insurance
$175
4.
Other
$165
Total
$691
In the second loan application, Mr Mandhan’s General Living Expenses were recorded as follows:
1.
General Expenses
$250
2.
Education
$1
3.
Insurance
$75
4.
Other
$125
Total
$451
The figure which appears in all of the seven summaries comprising “DecisionPoint 3” for “General Living Expenses Estimate” is $2,328 plus an allowance for discretionary expenses (in March and April that figure was $341 and in May it was $201). This appears to be the figure used by Ms Jupp in her consideration of the application on 21 March 2016.
In terms of the loan application dated 27 May 2016 which formed the basis of the Loan Agreement, Toyota Finance calculated expenses at $2,530 being HEM of $2,320 plus expenses not sufficiently covered by HEM of $201 compared with the declared expenses of just over $2,000 per month.
For much the same reasons as I gave in connection with the “Living with parents” entry, I reject any suggestion that Mr Jensen or Mr Krooglik falsely misstated any information in the loan application concerning Mr Mandhan’s expenses.
Mr Mandhan’s case then depends on acceptance that he provided an income and expenses form to Mr Jensen on 26 March 2016. Again, for the same reasons in essence I gave in connection with the “Living with parents” entry and the alleged provision of the rental agreement, I reject Mr Mandhan’s case that he provided an income and expenses form to Mr Jensen on 26 March 2016.
The Loss and Damage Case and the Gemstones
It is worth repeating at this point some aspects of Mr Mandhan’s evidence about the gemstones (see [99] above), evidence which I do not accept.
Mr Mandhan said that his wife inherited gemstones which were the foundation for the $605 million worth of invoices that he sought to rely on in the proceeding. Mr Mandhan could not remember from what point in time his wife had the gemstones, but she had them in 1996 when she did an assessment of the gemstones. Mr Mandhan said that in February 2016, he and his wife planned to sell one of the gemstones and she had another stone as well which she valued at $12 million. Mr Mandhan said that he and his wife were in joint partnership and that his wife passed the gemstones onto him for the purposes of sale. The gemstones were rubies at 730 carats. Mr Mandhan said that he saw the gemstones. He agreed that a 15 carat stone is a very large stone. He said they were 9 carat or 8 carat stones. Mr Mandhan said he was wearing a gemstone worth close to $50,000. Mr Mandhan said that they had not had a valuation done, but Mr Rakish Kumar had done a verification report. The verification report suggested the gemstones were worth in the order of AU$1.5 billion. In addition, the gemstones have medicinal properties and values as well. Mr Mandhan said that the gemstones had been transferred to him by his wife in 2016 about one month before he had gone to Peter Kittle Toyota. He said he believed that when he walked into Peter Kittle Toyota he had gemstones worth $1.5 billion. He said that the gemstones cost him business opportunities valued at $441 billion and the whole calculation he had given was $600 billion.
Mr Mandhan said that he was working on a plan which included a feasibility report which involved a sugar project which he considered was likely to yield $600 billion.
Mr Mandhan said that in December 2016, he was planning to sell a single stone which at a minimum he thought would realise $12 million. He explained that he thought the gemstone could be sold for $20 million, but after a 40% commission was taken out, it would yield $12 million at auction. At the same time, Mr Mandhan said that in late 2016, he could not afford three to four thousand dollars to have surgery performed. Mr Mandhan said that they could not sell the jewel in Adelaide. They could have sold it in Melbourne or Sydney, but they did not want to send the stone to those cities. Mr Mandhan’s health condition precluded him from driving to Melbourne or Sydney and his wife was looking after him.
Mr Mandhan said that between November 2017 and January 2018, they had only 67 cents a day for one person. It was put to him that at the same time, they had stones worth hundreds of millions of dollars. He disagreed with that and said that at that point in time, his wife had used all the stones to make oil because her health was deteriorating.
It was put to Mr Mandhan that rather than sell the stones worth hundreds of millions, potentially billions of dollars, he had ground them up to put into a massage oil rather than selling. Mr Mandhan said that that was the only viable option because to sell they needed to go to Melbourne or Sydney and they could not travel and they could not get surgery done because of lack of funds. He said the following:
So the minimum that she could do for me so that I could go to work and be normal, so that I don’t have the pain and I can earn an income so that we don’t have to rely on government support or we don’t – we can pay our normal bills and we can pay for our food on the table, we don’t get homeless. So she did what she can do. She knew what she has learned. She used everything as a professional capacity. She did what she could to stop me from having that pain which causes infection so that I can, day in and day out for five days, for six days, when I go to work, I can bring – I – we – we – I can be employed, and we can have a roof in our, on top.
With respect to the alleged loss case, Toyota Finance asks the Court to find that Mr and Mrs Mandhan did not hold gems worth hundreds of millions of dollars, or even a slight fraction thereof, as at March 2016. Mr Mandhan did not believe at the time he walked into Peter Kittle Toyota in 2016 that he had gemstones worth $1.5 billion. His evidence that he did is false. Furthermore, his evidence that at that time he thought he had a feasible business plan that he was about to commence that was likely to yield $600 billion is false. He said that he was working on the plan. He had not completed his feasibility report at the time he went to Peter Kittle Toyota. He said that he was “almost like finishing”. He referred to farmers on contract farming and giving them a better rate “so that we can get the maximum sugar cane and distil it to the point and get it marketed out and we all can profit from this thing”. He said that he was actually working on it. He said he knew it was feasible. He wanted to make sure there were no legal hassles. He was looking at what could be the marketing strategy and how that should be done.
Mr and Mrs Mandhan’s evidence that they had gemstones worth, at the very least hundreds of millions of dollars, and potentially billions of dollars, that they ground up to put into a massage oil rather than selling those gemstones is false. Mr Mandhan said that the only option that they had to sell was to go to Melbourne or Sydney and that they could not travel and they could not get surgery because of the lack of funds. His wife did what she could do. She knew what she had learned and she used everything as a professional capacity. She did what she could to stop him from having pain which causes infection and so that he could go out and work. Mr Mandhan produced two invoices rendered to him. Both were dated 6 November 2018 and purported to be invoices from 1 November 2016 to 28 October 2018. They purport to be from his wife and relate to massage and gemstones. The first totals $5,248,266 and the second totals $6 billion. Mrs Mandhan did not genuinely issue Mr Mandhan with invoices for $5,248,266 for massage services nor for $600 million for gems supposedly crushed in the course of massage services. These invoices were backdated and contrived. The 6 November 2018, which is the date of the invoices, is approximately two and-a-half weeks after Mr Mandhan filed his Statement of Claim which includes a payment due to the therapist said to equate to $1,899,999. Exhibit R2 was part of an affidavit that Mr Mandhan swore on 28 November 2018. It was suggested to Mr Mandhan in cross-examination that the invoices had been backdated having regard to the fact that approximately three weeks later Mr Mandhan had deposed in his affidavit of 28 November 2018 that he owed amounts for therapist fees of $1,899,999. Mr Mandhan said in his affidavit that he was going on a “hunch”. He considered what he could owe his wife. He forgot to look at the invoices. He read the matter out to his wife and she told him about the invoice and that the massage cost is “different”. Mr Mandhan said that he was not going to change it because he had already submitted the affidavit. He was able to come along with the invoices. He said that he would not rely on the affidavit and he went to the one where he put the exact figures with the invoices. He summarised his explanation as follows:
So yes, at this time, when the – when this was done, she has made the invoice. As I said, I – I forgot totally about the existence of the invoice at that time and I just put up a figure which I thought could be closer to that, but when she mentioned to me that the invoices doesn’t – does – the invoices are higher than what it is stated – what I have stated, well, I had an opportunity to make the change and put up the invoice. I did that.
There is no foundation in fact for the loss case advanced by Mr and Mrs Mandhan.
THE CROSS-CLAIM OF TOYOTA FINANCE
The loan agreement is the Loan Offer – Fixed Rate Loan consisting of four pages (the schedule) and the booklet of 12 pages entitled Consumer Fixed Rate Loan Contract Standard Terms and Conditions. The schedule provides that both the schedule and the booklet read together are the loan offer. The loan offer is made by the customer, in this case Mr Mandhan, to Toyota Finance. The loan agreement has an acceleration clause, clause 12, which means that if the borrower does not pay any amount payable under the loan contract on time and the default has not been remedied within the period specified in a notice stating what the default is and giving the borrower a period of at least 30 days to remedy it, then the balance due under the loan contract shall become immediately due and payable and the credit provider may bring enforcement proceedings against the borrower in relation to the loan contract and unless restricted by law from doing so, take possession of the vehicle.
There was a variation to the loan agreement. On or about 8 March 2018, Mr Mandhan applied for hardship assistance. As a result of his application, on or about 10 April 2018, Toyota Finance agreed to vary the terms of the loan agreement such that from 11 April 2018 Mr Mandhan would not be required to make any repayments for four months and, at the expiry of four months, from 11 September 2018, Mr Mandhan would be required to pay the balance of the loan amount plus interest in the total sum of $27,827.88 by way of 43 consecutive monthly instalments of $647.16.
Mr Mandhan did not pay any monthly instalments pursuant to the loan variation. On or about 4 March 2019, Toyota Finance caused a notice of default dated 1 March 2019 to be left at Mr Mandhan’s last known address informing him of the default and requiring him to remedy the default. The notice of default was left at the premises. Mr Mandhan had failed to remedy the default by 5 April 2019 and has not remedied the default at any time as at the date of the affidavit.
In his written submissions, Mr Mandhan claimed that an enforcement action could not be initiated in a period when Mr Mandhan has been granted immunity “from making any future payment to a point where he is recovered to get back to his usual employment”. He claims that this “immunity” arises as a result of a telephone conversation. In the telephone recording, a representative of Toyota Finance states “I’ll stop the direct debits now, it will not happen again” and “I’ll stop the future direct debits until we have an authorisation from you to recommence it”.
Toyota Finance submits that those statements are not a variation of the loan agreement and could not have been taken by Mr Mandhan to be a variation to the loan agreement in circumstances where he had previously entered into a variation of the loan agreement which variation was documented and sent to him and he had not received any written document confirming the alleged variation and he knew that the direct debit authorisation which the Toyota Finance representative agreed to cancel during the telephone call was a separate agreement to the loan agreement.
Toyota Finance further submits that an indefinite moratorium is manifestly uncommercial and it would entirely vitiate Toyota Finance’s contractual rights. It would require clearly expressed intent and a clear meeting of minds and this is not apparent from the communications of a customer service telephonist addressing a complaint referrable to a direct debit arrangement. I have listened to the relevant telephone calls and I consider that the context and subject matter is plainly the direct debit arrangement and that the submissions of Toyota Finance are correct. I do not need to consider the further submission of Toyota Finance that there was no consideration moving from Mr Mandhan for any variation and there has been no change of position by or prejudice to Mr Mandhan that would entitle him to prevent Toyota Finance from resuming its right to payment on reasonable notice. That submission also appears to be correct. Toyota Finance gave reasonable notice by the notice.
Toyota Finance is entitled to performance of the loan agreement and Mr Mandhan has defaulted under the loan agreement.
CONCLUSIONS
The applicant’s Originating application and claim must be dismissed. The Cross-Claim succeeds and the respondent must provide draft minutes of order with respect to the Cross-Claim reflecting the conclusions in these reasons.
I certify that the preceding two hundred and fifty-one (251) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Besanko. Associate:
Dated: 23 October 2023
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