Marketlend Pty Ltd v Blackburn - [2020] NSWDC 358

District Court

New South Wales

Medium Neutral Citation: Marketlend Pty Ltd v Blackburn [2020] NSWDC 358
Hearing dates: 25-27 March 2020, 31 March 2020, 15 April 2020
Date of orders: 9 July 2020
Decision date: 09 July 2020
Jurisdiction: Civil
Before: Scotting DCJ
Decision:
(1)   Verdict for the second defendant.
(2)   The plaintiff is to pay the costs of the second defendant as agreed or assessed, on the ordinary basis.
(3)   I grant leave to the parties to approach my Associate to relist the matter if an alternate costs order is sought.

Catchwords:
CONTRACT – Formation – Agreement – Execution of documents by electronic means
EVIDENCE – Burden of proof – Civil proceedings

Legislation Cited:
Evidence Act 1995

Cases Cited:
Briginshaw v Briginshaw (1938) 60 CLR 336
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Jones v Dunkel (1959) 101 CLR 298
Lithgow City Council v Jackson (2011) 244 CLR 352
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia(No 3) (2010) 267 ALR 494
Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126
Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA 584
Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971
Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1

Category: Principal judgment
Parties: Marketlend Pty Ltd (Plaintiff)
Matthew Charles Blackburn (First Defendant)
Sarah Louise Blackburn (Second Defendant)
Blackburn Caravans Pty Ltd (Third Defendant)
Representation:
Counsel: J Willis (Plaintiff)
A Laylee (Second Defendant)
Solicitors: Emerson Lewis Lawyers (Plaintiff)
Kelly Lawyers (Second Defendant)

File Number(s): 2018/87969
Publication restriction: None

Judgment

Introduction

Between about 2 November 2017 and 17 January 2018 (the relevant period), the plaintiff, Marketlend Pty Ltd (Marketlend) entered into a series of agreements with the third defendant, Blackburn Caravans Pty Ltd (the company) by which Marketlend advanced a line of credit and other finance to the company in the sum of about $610,000.
The agreements were signed on behalf of the company by the first defendant Matthew Charles Blackburn (Matthew) one of its directors. [1] The company operated a business trading under the name “RiverCity RVs” selling caravans and recreational vehicles from commercial premises in Burpengary, Queensland (the Burpengary premises). [2] Matthew was responsible for the day to day running of the company.
1. I have referred to some of the parties and other relevant persons by their first names to avoid the confusion that arises from their familial relationships, and I intend no disrespect by doing so.
2. All relevant events took place in Queensland and any reference to a place in this judgment is a place in that State.
Marketlend advanced the funds to the company on the basis that the performance of the company’s obligations would be guaranteed by the directors of the company, Matthew and the second defendant, Sarah Louise Blackburn (Sarah).
Matthew and Sarah were married, but separated on or about 9 October 2017 and lived apart during the relevant period. Sarah was living at the former matrimonial home in Cleveland (the Cleveland property) and Matthew was living with his parents in Manly. In the relevant period, Sarah looked after the couple’s three children, twins aged eight and a son aged four. Sarah only visited the Burpengary premises on the odd occasion both before and after the separation. After the separation, Matthew retained keys and a garage door remote control for the Cleveland property.
Marketlend required the agreements to be signed electronically by the use of a digital platform provided by a third party, DocuSign Inc (DocuSign). In the relevant period a number of emails attaching relevant documents were sent by Docusign on behalf of Marketlend to Matthew’s company email address, [email protected]. Each relevant document in the case was purportedly signed by Sarah using DocuSign.
It was common ground that both Matthew and Sarah had DocuSign accounts. [3] Matthew’s account was configured to apply one of five pre-determined typescript signatures. Two of those typescript signatures purported to be Sarah’s signature. Sarah’s account was configured to apply a PDF version of her handwritten signature and/or a PDF of her initials that she had uploaded to her account.
3. Which I will refer to as ‘Matthew’s account’ and ‘Sarah’s account’
Sarah’s case is that she did not sign any of the documents sent by Marketlend using her account.
Marketlend limited its case at trial to the position that Sarah signed a series of documents[4] comprising the “Application for Trade Credit Terms with Marketlend” (the First Agreement) using her account on 2 November 2017 at about 1.30pm, on a mobile device connected to the IP address of Cleveland property. It was common ground that Sarah’s account was used by a person to apply her PDF signature and PDF initials to the First Agreement at that time.
4. Set out at [25] below.
Marketlend accepts, as demonstrated by the expert evidence, that Matthew used his account to apply a typescript signature for Sarah to other relevant documents. Matthew’s evidence at trial was that he was authorised by Sarah to do so.
The company has gone into liquidation and Matthew has been declared bankrupt. No significant repayments were made to Marketlend. The current amount outstanding calculated in accordance with the terms of the First Agreement is $702,507.32, including interest to 9 April 2020. Interest continues to accrue at the rate of $325.88 per day. [5] Marketlend is also contractually entitled to its costs of the proceedings on an indemnity basis. Sarah did not put quantum in issue. Accordingly, if Marketlend is successful in the proceedings, it is entitled to a judgment in these terms.
5. In accordance with the First Agreement.
The only issue raised in the case is a factual one. Did Sarah use her DocuSign account at 1.30pm on 2 November 2017 at the Cleveland property to sign the First Agreement?

Evidence

Marketlend read the following affidavits:

Affidavits of Matthew Charles Blackburn affirmed 10 July 2018, 4 March 2019, 29 October 2019, and 14 February 2020.

Affidavit of Paul Roffey, director of Marketlend, affirmed 30 August 2018 and 4 October 2019.

Affidavit of Christopher John Mangifesta, general manager of Blackburn Caravans sworn 4 March 2019.

Affidavit of Ruby-Ann Schmelzer affirmed 24 October 2019 (paralegal’s affidavit annexing documents).

Affidavit of Catherine Donna Blackburn, Matthew’s mother, affirmed 29 October 2019.

Affidavits of Geoffrey Campey, digital forensic expert, affirmed 4 November 2019 and 14 February 2020.

Ms Schmelzer and Catherine Blackburn were not required for cross-examination. The other deponents were called and cross-examined via audio-visual link (AVL).
Sarah read the following affidavits:

Affidavits of Sarah Louise Blackburn affirmed 16 November 2018 [6] , 30 July 2019 [7] and 20 December 2019 [8] .

Affidavit of Andre Ross, digital forensic expert, affirmed 20 December 2019.

Affidavit of Shayne Creswick, Sarah’s mother, affirmed 24 March 2020. [9]
6. Paragraphs 24, 51, 61, 65 and 66 were not read.
7. The second sentences in paragraphs 4 and 20, paragraphs 21, 31-34 (including the exhibit referred to in paragraph 34) 38 (including the exhibits referred to in paragraph 38) and the word ‘fraudulently’ in paragraphs 45 and 45 were not read.
8. Paragraphs 29 and 49 were not read.
9. Paragraphs 8-14 were not read. Shayne Creswick is the legal name of Sarah’s mother but she is most often referred to in the family as “Shan” and I will refer to her this way because she is referred to in some relevant documents this way.

Mr Ross was not required for cross-examination. Sarah and Mrs Creswick were called and cross-examined via AVL.

Trial Procedure

This case was conducted during the COVID-19 pandemic. At the time of the trial, the closure of the Queensland border would have prevented most of the witnesses, Sarah and her legal representatives from attending court in person. The hearing had been vacated on a prior occasion. As a result, there was no alternative but to hold the hearing by AVL.
Before the trial commenced, the parties were concerned that there were issues of credit that may not be fairly resolved in an AVL hearing. During the trial I was conscious that “the dynamics and demands of the remote process [did] not impinge upon fundamental principles”, including procedural fairness: Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA 584 at [4]. Whilst the trial encountered challenges posed by the unreliability of the AVL system, I am satisfied that I was able to properly assess the credit of the relevant witnesses. For the reasons set out below, I am satisfied that my findings based on demeanour follow my findings based on the objective evidence.
The legal representatives for both parties are to be highly commended for their agile response to difficult circumstances. In particular, counsel co-operated with each other to present their clients’ respective cases forcefully and efficiently and I am indebted to them for their considerable assistance.

Relevant Law

Although the case was a purely factual one, there are a number of legal principles to be applied in determining the factual dispute, which can be stated as follows.
The plaintiff must establish its case on the balance of probabilities taking into account factors including; the nature of the cause of action or defence, the subject matter of the proceedings and the gravity of the matters alleged: s 140 Evidence Act 1995.
Where the law requires the proof of any fact, the Court must feel an actual level of persuasion of its occurrence before it can be found. It cannot be found as a result of the pure mechanical comparison of probabilities independent of any belief in its reality. It is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Court. Reasonable satisfaction is not a state of mind that is established independently of the nature and consequence of the fact or facts to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity or consequences flowing from a particular finding are considerations which must affect the answer to the question, whether an issue has been proved to the reasonable satisfaction of the Court: Briginshaw v Briginshaw (1938) 60 CLR 336 per Dixon J at 360-361.
The determination of the case is likely to require findings of dishonesty and/or fraud and a finding on the balance of probabilities of such matters should not be made lightly: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 170-1 per Mason CJ, Brennan, Deane and Gaudron JJ.
“[D]ishonesty is usually a matter of inference from primary facts”: Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 at [186] per Lord Millet cited with approval in Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia(No 3) (2010) 267 ALR 494 at [69] per Flick J, Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 at [33] per Harrison J and Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 at [110] per Kenny J.
The relevant principles were considered in Palmer v Dolman [2005] NSWCA 361 at [33]-[47] by Ipp JA (Tobias and Basten JJA agreeing) and can be summarised as follows:

it is sufficient in a civil case that the circumstances raise a more probable inference in favour of what is alleged;

the Court must consider the weight which is to be given to the united force of all the circumstances put together. The onus of proof is only to be applied at the final stage of the reasoning process. It is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of a circumstantial case;

the inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful;

where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved; and

the inquiry is simply, taking due account of what was said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, has the allegation been proved on a balance of probabilities.

While a more probable inference may fall short of certainty, it must be more than an inference of equal degree of probability with other inferences, so as to avoid guess or conjecture. In establishing an inference of a greater degree of likelihood, it is only necessary to demonstrate that a competing inference is less likely, not that it is inherently improbable: Lithgow City Council v Jackson (2011) 244 CLR 352 at [94] (Crennan J).
The unexplained failure of a party to give evidence or to call a witness may lead to an inference that the uncalled evidence would not have assisted the party’s case: Jones v Dunkel (1959) 101 CLR 298.
The principle in Jones v Dunkel may be applied more readily when a party fails to adduce particular evidence from a witness that it calls in chief on a particular topic, because the most natural inference is that the party fears to do so because it would have exposed evidence unfavourable to that party: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419 (Handley JA).

Marketlend’s Case

As is evident from the Introduction, Marketlend’s case has evolved and it is important for the resolution of some of the issues to have regard to its allegations as they were made over time.
Marketlend pleaded in the Amended Statement of Claim filed 11 April 2019 that Sarah had used DocuSign to execute:

the First Agreement on 2 November 2017; and

an “Application for Trade Credit with Marketlend (ACN 602 720 856)” (the Second Agreement) on 7 December 2017.

Mr Roffey deposed in his affidavit of 4 October 2019 that Marketlend alleged that Sarah had used her account to sign the First Agreement on 2 November 2017, the second version of the First Agreement on 17 January 2018 and the Second Agreement on 7 December 2017.
Ms Schmelzer deposed in her affidavit of 24 October 2019 that Marketlend alleged that Sarah used her account to sign the “Agreement to Purchase Supplies and Provide Terms of Credit” (the Supply Agreement) on 6 November 2017.
Matthew deposed in his first affidavit [10] of 10 July 2018 that Sarah used her account to sign the First Agreement on 2 November 2017. Matthew deposed in his second affidavit [11] that Sarah used her account to sign the First Agreement on 2 November 2017 and the Supply Agreement on 6 November 2017. His third and fourth affidavits [12] were silent as to whether or not Sarah used her account to sign the second version of the First Agreement and/or the Second Agreement.
10. Affirmed 10 July 2018.
11. Affirmed 4 March 2019.
12. Affirmed 29 October 2019 and 14 February 2020 respectively.

Marketlend’s knowledge of Sarah’s execution of the First Agreement

A number of Marketlend’s processes were automated and/or undertaken by third parties on its behalf. For example, documents sent out for signature were emailed by DocuSign on behalf of Marketlend and documents like the “Account Particulars” were generated and emailed by another third party provider, formsite Inc (formsite).
Marketlend’s application process required the online submission of a completed document referred to as an “Application for Trade Credit Terms with Marketlend” (the Application). The Application consisted of the following documents:

Application Details;

Consent for Credit Searches and Acknowledgment of Privacy Policy;

Terms and Conditions of Trade;

Application for Trade Credit Terms with Marketlend ACN 602720856 – consisting of a Declaration, Indemnity and Charge by the Account Holder (Application for Trade Credit Form);

Personal Guarantee and Indemnity Agreement – to be signed by the directors of the company as guarantors;

Direct Debit – Client Service Agreement; and

Direct Debit Request.

If Marketlend was satisfied with the content of the Application, it referred it to a third party, CreditorWatch Pty Ltd (CreditorWatch), to conduct a credit check on the applicant. If the credit check was satisfactory, Marketlend accepted the applicant’s offer by issuing a document entitled “Account Particulars” and conducting a recorded telephone call to confirm the essential terms of the agreement with the applicant (the Settlement Call). At this time, the applicant became an Account Holder and Marketlend would arrange to advance the funds sought by it.
Marketlend had no contact with Sarah prior to 2 November 2017 when it is alleged that she signed the First Agreement. Marketlend’s first contact with Sarah was in about March 2018 after the company had defaulted and it was alleged that Sarah had signed a number of other documents in favour of Marketlend. In March 2018 it was Sarah’s solicitor who made contact with Marketlend.
It was common ground that Matthew supplied his contact details to Marketlend for Sarah. Sarah did not provide any documents to Marketlend that could be used to verify her identity and Matthew did not supply any of those types of documents on her behalf. The particulars of Sarah’s driver licence, required by the Application Details form as part of the First Agreement, were left blank.
In the forms described in [34(d)] and [34(e)] above, Marketlend required that each of them be signed by the signatories, Matthew and Sarah, in the presence of a witness. As to the identity of the witness the forms provided: [13]

Note: Witness must be truly independent. The witness must not be an employee or representative of Marketlend, a family member or another Guarantor.

13. These words appeared in bold on the form described in [24(d)].

Despite the plain language of the forms, they were submitted online on behalf of the company as part of the First Agreement and accepted by Marketlend, without either of them being witnessed by an independent person as required.
CreditorWatch did not make contact with Sarah during the course of conducting the credit check for the company.
The Account Particulars document that conveyed Marketlend’s acceptance of the company’s offer in the First Agreement, was sent to Matthew by email on or about 2 November 2017. I infer that the Settlement Call, if it was conducted, was made to Matthew because the only telephone numbers that Marketlend had were for Matthew.
On 7 November 2017 Marketlend sent an email to Matthew’s email address requesting that the First Agreement be re-executed by the company, Matthew and Sarah because it had not been executed in accordance with Marketlend’s compliance procedures in that Sarah was required to sign it using DocuSign. The email stated that payment of funds could not be made in favour of the company without the completion of this requirement.
Notwithstanding the content of Marketlend’s email of 7 November 2017, the First Agreement was settled on 8 November 2017 and funds were first advanced by Marketlend on that date.
By about 19 January 2018 Marketlend had advanced all of the funds that were the subject of the First Agreement.
The only evidence independent of the company and Matthew that Marketlend could rely on to verify that Sarah entered into the First Agreement was provided by an analysis of the DocuSign metadata. [14]
14. I will return to deal with the evidence of Matthew and Christopher Mangifesta, the General Manager of the company, later.

The Independent Evidence

The DocuSign evidence relating to the signing of the First Agreement on 2 November 2017

The expert evidence relating to the metadata and the operation of the DocuSign platform was common ground by the time that the case reached closing submissions and it can be summarised as follows.
The DocuSign metadata is contained in an Envelope History that is recorded in a Certificate of Completion for a document. The metadata is recorded on each occasion that the document is accessed or an action is undertaken relating to it, such as when it is electronically signed. The metadata includes the IP address that a device is connected to when a person is using DocuSign.
The evidence established the IP addresses for the Cleveland property and the Burpengary premises. Where an IP address was unidentified, it was common ground that it could have indicated that the account was accessed from a mobile device connected to a mobile telephone tower with its own IP address or use of a fixed connection at an unknown address.
At 9.52am on 30 October 2017 the First Agreement was sent by DocuSign, on behalf of Marketlend, to Matthew’s email address. I infer from the evidence that it had been completed based on the information provided by Matthew to Marketlend.
That email was forwarded from Matthew’s email address to Sarah’s company email address, [email protected], at 2.13pm on 31 October 2017.
The First Agreement was opened using Sarah’s DocuSign account at 1.27pm on 2 November 2017. At 1.30pm on the same day, Sarah’s PDF signature was applied to the Application for Trade Credit form and the Personal Guarantee and Indemnity Agreement form of the First Agreement and a PDF of her initials was applied to every other page of the First Agreement, [15] using a mobile device that was connected to the IP address for the Cleveland property. [16] The DocuSign system then automatically generated an email to Matthew advising that Sarah had signed the First Agreement and providing an executed copy of it.
15. Where initials were required by one or more of the forms.
16. 60.226.160.235
It was common ground that both Matthew and Sarah had access to the Cleveland property and to the Wi-Fi network at the property on 2 November 2017.
At 1.49pm on 2 November 2017 a person using Matthew’s account viewed the signed First Agreement using an unidentified IP address.
At 1.53pm on 2 November 2017 a person using Matthew’s account viewed the signed First Agreement using a computer connected to the IP address of the Burpengary premises. [17]
17. 165.228.12.178
The person using Sarah’s DocuSign account required access to emails sent to the email address, [email protected] (Sarah’s company email address). Access to Sarah’s account was not protected by a password or other means of authentication such as the provision of a confirmation code by text message. No notification was given to an account holder that their DocuSign account had been installed on a new device or accessed from a new device.
There was evidence that both Matthew and Sarah had access to the emails sent to Sarah’s company email account. On 17 February 2017 Matthew received an email from an information technology contractor that provided him with the log in details (email address and password) required to control the email account. In the relevant period, there was evidence that Sarah had access to and used her company email address from time to time. There was evidence that she could access her company email account from her mobile telephone. There was no evidence as to how the email account was configured on that device. In the relevant period, Sarah regularly, and usually, used a personal email address.
On 6 November 2017 at 1.19pm the Supply Agreement was signed using Sarah’s DocuSign account by applying a PDF of her signature and initials to it, using a mobile device connected to an unknown IP address. This agreement was not relied on by Marketlend at trial, however an analysis of the metadata relating to it reveals the following:

When the Supply agreement was originally sent to Matthew by DocuSign on 3 November 2017 it was assigned an Envelope ID ending in EFC5.

When the Supply Agreement was opened using Sarah’s account on 6 November 2017 at 1.14pm it was assigned an Envelope ID ending in 9O12.

The Supply Agreement was resigned on 8 November 2017 at 10.38am by Matthew using his account to apply a typescript version of Sarah’s signature in which her middle name was misspelled as “Loiuse”, using a device connected to the IP address for the Burpengary premises.

When it was resigned by Matthew it was accessed through the original Envelope ID ending EFC5.

On 7 December 2017 when the Second Agreement was purportedly executed by Sarah using DocuSign, it was Matthew using his own account that applied a typescript signature for Sarah to the document.
On 17 January 2018 when the second version of First Agreement was purportedly signed by Sarah using DocuSign, it was Matthew using his own account that applied a typescript signature for Sarah to the document from a computer connected to the IP address for the Burpengary premises.
On 18 January 2018 when the Power of Attorney was purportedly signed by Sarah using DocuSign, it was Matthew using his own account that applied a typescript signature for Sarah to the document from a computer connected to the IP address for the Burpengary premises.

The mobile telephone location evidence for 2 November 2017

The telephone bills for the company contained some information about the mobile telephone towers that were used to connect the mobile telephones of Matthew and Sarah to make a call or access the internet on 2 November 2017.
It was common ground that the mobile telephone location evidence for 2 November 2017 was not conclusive, and it was open to find that either Matthew or Sarah could have been at the Cleveland property at about 1.30pm.

Contemporaneous emails and text messages between Matthew and Sarah

There was no evidence in the considerable volume of emails and text messages passing between Matthew and Sarah that:

Sarah knew of the company’s approach to Marketlend before 30 October 2017; and/or that

Sarah knew that a concluded agreement or agreements had been entered into with Marketlend in the relevant period. [18]

18. Sarah was taken to a significant number of text messages in cross-examination, but only a selection of them were tendered. The email correspondence was contained in the Court Book.

The Evidence of Matthew and Christopher Mangifesta

I will refer to Matthew’s evidence chronologically. Mr Mangifesta’s evidence is relevant only to the meeting between Matthew and Sarah on 30 October 2017 and I will deal with his evidence as part of the chronology.

Background

Matthew and Sarah were married on 4 September 2010. They were both appointed directors of the company on 4 March 2011.
From the company’s inception, Sarah stayed at home and looked after the children. Matthew worked for the company six days a week from 8.30am to 6.30pm in the operation of the business at the Burpengary premises. The Burpengary premises were located about one hour’s drive from the Cleveland property and about 45 minutes’ drive from Matthew’s parents’ house in Manly. Sarah rarely attended the Burpengary premises.
Matthew gave evidence that from the inception of the company that Sarah’s father, John Creswick (John), acted in the capacity of a director of the company and that he was involved in all aspects of the operation of the business, including its financial affairs. John also had an interest in a company, NQ Heli Adventure Pty Ltd (NQ Heli).
In or about the start of 2017 there was a falling out between John, James Creswick (Sarah’s brother (James)), Matthew and Sarah relating to the operation of the company, its financial position and debts that were alleged to be owed to it by NQ Heli. Matthew and Sarah asked an accounting firm to conduct a forensic investigation into the dealings of John and James in the financial affairs of the company. Matthew and Sarah alleged at this time that John and James had acted to the detriment of the company and that NQ Heli owed it in excess of $3 million.
As a result of these allegations, from about February 2017 onwards, Sarah became estranged from her family and did not speak to John, James or her mother, Shayne Creswick (Shan). Matthew’s understanding was that the estrangement continued and that Sarah did not have any contact with Shan until about early 2018. Matthew had little direct knowledge of the true position. His understanding was derived from what he was told by Sarah and his opinion based on what he read in some emails and text messages. Matthew had direct email correspondence with Shan on a number of occasions, including:

on 25 October 2017, when Shan wrote that she missed having contact with Sarah and the grandchildren; and

at 7.03am on 2 November 2017, which was the twins’ birthday. At that time Shan wrote that she was upset to be out of contact with the twins on their birthday and indicating that she was going to call them through Matthew or Sarah later that day.

Matthew’s mobility in October and November 2017

On or about 30 September 2017 Matthew broke his leg. He deposed in his fourth affidavit that he spent most of his time in October and November 2017 recovering from surgery at his parents’ home. Medical records indicated that the surgery took place on 12 October 2017 and that he was fitted for a “moonboot” on 1 November 2017. In his fourth affidavit, Matthew deposed that he was unable to drive for an unspecified period, that he had limited mobility and that he did not attend the Cleveland property frequently following the separation because Sarah would bring things to him that he asked for and that she brought the children to visit him at his parents’ house.
In cross-examination he accepted that he was at the Crown Casino in Melbourne on 8 October 2017, with the use of a wheelchair. He could not recall how he got to the Cleveland property on 30 October 2017, but accepted that he would have travelled by car and that his car was an automatic. He accepted that he was at the Cleveland property on 5 November 2017 when Sarah was not there.
Catherine Blackburn, Matthew’s mother, deposed that between about 12 October 2017 and 4 December 2017 Matthew resided at his parents’ home in Manly. Her evidence was that in October and November 2017 that Matthew was recovering from a broken leg and that he spent a lot of time at home in that period.
The mobile telephone location evidence in the period 25 October 2017 to 24 November 2017 demonstrated that Matthew was travelling regularly between the Burpengary premises, his parents’ home and suburbs close to it and the Cleveland property.

The Company’s Approach to Marketlend

In or about September 2017 Matthew applied to the Commonwealth Bank (CBA) for finance to provide working capital for the company. That application was unsuccessful.
Matthew was referred to Marketlend by an online finance broker. His initial contact with Marketlend was by telephone, when he spoke with Leo Tyndall and Max (surname unknown).
On 30 October 2017, Matthew signed the First Agreement using his DocuSign account.
In his first affidavit, Matthew deposed that he first told Sarah about the need for her to sign the First Agreement so that Marketlend would provide working capital to the company, in a telephone call that took place on or about 30 October 2017. On that version, Matthew deposed that Sarah agreed to do so in the course of that telephone conversation and that the next contact he had with her was when he received an email from DocuSign (on 2 November 2017) advising him that she had signed the First Agreement and providing him with a copy of it. He confirmed this evidence in his second affidavit.
In cross-examination Matthew accepted that there were no telephone calls recorded on the company’s telephone bill between the mobile telephones of himself and Sarah on 30 October 2017. Matthew gave evidence that he telephoned Mr Mangifesta as soon as he received the First Agreement by email from DocuSign on that day. He asked Mr Mangifesta to print a copy of it and bring it to the Cleveland property that night. Matthew conceded in cross-examination that if there were no mobile telephone calls recorded between him and Sarah on 30 October 2017 that he may not have told Sarah about the existence of the First Agreement until the meeting in the evening of 30 October 2017.

The Meeting on 30 October 2017

Mr Mangifesta was the General Manager of the company from about mid-2017. He gave evidence that on 30 October 2017 he printed a copy of the First Agreement at the Burpengary premises and took it to the Cleveland property at Matthew’s request. When he arrived, Matthew and Sarah were present at the Cleveland property and were having a discussion. Mr Mangifesta could not recall how Matthew had travelled to the Cleveland property. Mr Mangifesta also took with him a finance application relating to the purchase of a Toyota Landcruiser by the company for Mr Mangifesta’s use (the Capital Finance Agreement). A condition of the Capital Finance Agreement was that Sarah was required to execute a personal guarantee.
Mr Mangifesta gave evidence that the First Agreement had been emailed to him by Matthew to print. He did not recall having access to Matthew’s company email account for the purpose of gaining access to the document. When giving his evidence he seemed surprised by the suggestion that he did so. Whilst he said that he “did not recall”, I was left with the impression that he did not believe that he had access to Matthew’s company email account at the relevant time or at all. Mr Mangifesta gave evidence that he left the Burpengary premises at about 7.30pm or 8.00pm after it was dark to drive to the Cleveland property. Matthew and Sarah were there when he arrived.
In his affidavit, Mr Mangifesta deposed that a conversation took place in words to the following effect:

Mr Mangifesta: Here is the Application for Trade Credit Terms with Marketlend. Are you both happy with it?

Matthew: Yep, it’s fine.

Sarah: Yeah, I’m happy with it.

In his oral evidence, he said that he heard bits and pieces of the conversation between Matthew and Sarah because he was outside for most of the time that he was there, either smoking or talking on the telephone. Mr Mangifesta gave evidence that he asked Matthew and Sarah, “have you read it?” and “are you fine with it?”. His impression was that they both indicated that they were happy with it.
Mr Mangifesta gave evidence that he witnessed the signatures of Matthew and Sarah on the Capital Finance Agreement, which he took with him at the end of the meeting to send back to the finance company. He left the paper copy of the First Agreement on the dining room table at the Cleveland property. He left at about 10.00pm or 10.30pm and got home at about midnight. Matthew was still at the Cleveland property when Mr Mangifesta left.
In his second affidavit Matthew deposed that on or around the evening of 30 October 2017 that Mr Mangifesta brought a copy of the First Agreement and the Capital Finance Agreement to the Cleveland property. Matthew deposed that all three of them went through the two agreements. Matthew deposed that a conversation took place in words to the following effect:

Mr Mangifesta: Everyone has read the Marketlend agreement and are you both happy with it?

Matthew: Yes, I have.

Sarah: Yep, I’m happy with it.

In cross-examination Matthew was taken to the Certificate of Completion for the Capital Finance Agreement, suggesting that it was signed by Sarah using her DocuSign account on 30 October 2017 at about 7.23pm and that it was reviewed by a person with access to Matthew’s email account connected to the IP address of the Burpengary premises at 7.32pm. Matthew gave evidence that he was not at the Burpengary premises at that time and that it was possible that Mr Mangifesta was accessing his emails at that time, but that he thought that the meeting started at 7.30pm or 8.00pm at the Cleveland property and that Mr Mangifesta arrived at about the same time that he did. Matthew could not recall if he drove himself to the Cleveland property. Matthew gave evidence in cross-examination that he “believed” that he signed a paper copy of the Capital Finance Agreement. He did not recall if Sarah did so. He could not recall if Sarah asked any questions about the First Agreement. Matthew gave evidence that the meeting was fairly brief and lasted about 20 minutes and then he left.

Events after 30 October 2017

At 2.31pm on 31 October 2017, Matthew forwarded the email from DocuSign attaching the First Agreement to Sarah’s company email address.
At about 4.30pm on 1 November 2017, Sarah sent a text message to Matthew stating that she could not open the link in the DocuSign email to sign the First Agreement. In cross-examination Matthew could not recall if the First Agreement was scanned and emailed to Sarah in accordance with the request in her text message. He believed that if it was scanned and sent to her that Mr Mangifesta would have done that, because he could not print and/or scan documents at his parents’ house.
In his fourth affidavit, Matthew deposed that Sarah told him on or about 2 November 2017 that their son had contracted impetigo. At about 12.34pm she sent him a text message, explaining that she would not be attending a birthday dinner for the twins to be held at his parents’ house, that stated:

[He] hasn’t stopped screaming and crying and I’ve got Mum emailing, Jayne and Emily msg’s from both him and her, your upset, they gave me a hard enough morning and I can’t any-more.

At 1.17pm on 2 November 2017 Matthew gave evidence that Mr Mangifesta used Matthew’s email account to send a PDF version of the First Agreement to Sarah’s company email address. In cross-examination Matthew did not recall a telephone conversation with Sarah on 2 November 2017 about sending her a PDF version of the First Agreement but that it was the twins’ birthday and that he did have a number of telephone conversations with her on that day. The telephone records indicated only one call of just under 4 minutes on that day when Sarah called Matthew, just before 11.00am. He saw her and spoke to her when she dropped the children off for the birthday dinner, but he did not recall the content of any conversation.
Matthew recalled getting the email from Sarah via DocuSign at about 1.30pm. Sarah did not tell him that she had signed the First Agreement on that day or at all. He gave evidence that he checked that it was signed properly and that he “would have” forwarded it to Marketlend shortly after he received it. He did not make contact with Sarah or tell her that he had received the signed copy of the First Agreement. He believed that he would have thanked her for signing the First Agreement when he saw her.
When Matthew was put under pressure in cross-examination about the lack of objective evidence of calls between Matthew’s and Sarah’s mobile telephones he responded by saying that they communicated by a number of means including, landlines, text messages, Facebook Messenger, Facetime, Facetime audio and email. He gave evidence that he did not have access to any of the Facebook Messenger content anymore because Sarah had blocked him.

Matthew’s whereabouts on 2 November 2017

In his third affidavit, Matthew deposed that he did not attend the Cleveland property on 2 November 2017. He deposed by reference to the mobile telephone location evidence that he was at his parents’ home in Manly until about 3.20pm.
In cross-examination Matthew denied signing the First Agreement using Sarah’s account on 2 November 2017.

Events after 2 November 2017

In cross-examination Matthew gave evidence that he obtained Sarah’s consent verbally before using his account to sign the Second Agreement on 7 December 2017 and the second version of the First Agreement on 17 January 2018. When asked to identify the occasions when this was done he responded in words to the effect, “I would have done it by phone”. He gave evidence that he could not remember exactly when things occurred because they happened in the course of a “nasty separation”. He described Sarah as being “hot and cold, like you would not believe”, but they were still getting along in January 2018.

In cross-examination Matthew was asked why he did not tell anyone in the preparation of his affidavit evidence that he had signed the second version of the First Agreement, to which he replied “I was never asked”.

The meeting on 13 March 2018

In cross-examination Matthew agreed that he attended a meeting with Sarah and John at the Burpengary premises. He agreed that he had seen minutes that were prepared recording what had occurred at that meeting in Sarah’s second affidavit. It was put to Matthew that in the course of that meeting that he said to Sarah, words to the effect, “you never actually signed any of these applications, did you?” He could not recall saying those words. It was further put to him that he discussed at the meeting signing the First Agreement on Sarah’s behalf on 17 January 2018. He did not recall that discussion.

Sarah’s Case

The evidence in Sarah’s case came down to her evidence and Shan’s evidence as to Sarah’s whereabouts at about 1.30pm on 2 November 2017. I will not repeat matters that were not in dispute, unless it is necessary to do.

Sarah’s evidence

In Sarah’s first affidavit [19] she deposed that she was estranged from “her family” as a result of allegations made by Matthew against John and James until about February 2018. Sarah deposed that she had only been to the Burpengary premises twice since about late October 2017, in March and June 2018.
19. Affirmed 16 November 2018.
At the time of her first affidavit, Sarah understood that it was alleged by Marketlend that she had used Docusign to sign documents on 17 January 2018 and 18 January 2018. She denied signing those documents.
Sarah denied being told by Matthew on or about 30 October 2017 that he needed her to sign the First Agreement so that Marketlend would advance the company funds for working capital.
In March 2018 Matthew provided Sarah with a letter from Marketlend dated 23 February 2018 purporting to appoint an officer of Marketlend pursuant to a Power of Attorney signed on behalf of the company. On 7 March 2018, Sarah instructed her solicitor to write to Marketlend seeking a copy of any relevant loan agreement and any associated documents. Later that day, Marketlend provided a copy of the second version of the First Agreement dated 17 January 2018 and a copy of a Power of Attorney form purportedly signed by Sarah using DocuSign on 18 January 2018 (the Power of Attorney). The metadata demonstrated that the Power of Attorney was signed using Matthew’s account on 18 January 2018 by a person using a device connected to the IP address of the Burpengary premises. Sarah deposed that by reference to her telephone records that she was some distance from the Burpengary premises at the time that the Power of Attorney was signed.
Sarah deposed that she did not authorise Matthew to sign the second version of the First Agreement or the Power of Attorney on her behalf.
By the time of Sarah’s second affidavit, [20] Marketlend had amended the Statement of Claim and now relied on the First Agreement and the Second Agreement. In her second affidavit Sarah deposed that she did not sign the First Agreement. She deposed that Matthew said to her, in a meeting on 13 March 2018, that she did not sign the First Agreement and annexed the minutes of the meeting. She deposed that the audio recording of the meeting involving her and Matthew had been provided to Marketlend.
20. Affirmed 30 July 2019.
Sarah agreed that on 30 October 2017 that Mr Mangifesta came to the Cleveland property and that he had witnessed her signature on the Capital Finance Agreement. She did not recall any discussion about the First Agreement and denied that she had been given a copy of it at that time.
Sarah conceded that she had sent a text message to the effect that she could not open the link to sign the First Agreement. She deposed that she was not sent a PDF version of the document after that. She did not recall having access to her company email address at that time.
Sarah deposed that she was unaware of how the company spent the money advanced by Marketlend.
Sarah denied signing the Second Agreement or authorising Matthew to do so on her behalf. The Second Agreement was signed by Matthew at 3.27pm on 7 December 2017. Sarah deposed that at that time he was at a Christmas party at the Kindergarten that their youngest son attended.
In her third affidavit, [21] Sarah deposed that Matthew frequently attended the Cleveland property after the separation to see the children or to pick up things that he wanted.
21. Affirmed 17 December 2019.
Sarah denied using DocuSign to execute the First Agreement, the second version of the First Agreement or the Second Agreement.
Sarah deposed that on 2 November 2017 that she was away from the Cleveland property from about 8.30am to about 4.30pm. After dropping the twins to school, Sarah said that she went for a walk with her youngest son along Wynnum Esplanade in Manly and then took him to a park. She then went shopping for birthday presents for the twins. At about 1.30pm she was at her parents’ home at Wellington Point. At about 2.30pm she returned to the school to pick up the twins.
Sarah accepted in cross-examination that she had been estranged from her parents from about March 2017. She did not see John on 2 November 2017. She accepted that she had not tried to contact her mother directly but she was in contact with her sisters and was receiving messages through them. She accepted that Shan was trying to make contact with her but she said she did not engage with Shan until about the end of October 2017. At about that time, Sarah gave evidence that she was seeking support because she had separated from Matthew and she was looking after the children by herself. The meeting with Shan on 2 November 2017 was a significant event and that she found it emotional. She did not consider the meeting to be a reconciliation but a small step towards re-connecting with her mother.
She accepted that in her first affidavit when she deposed that she was estranged from her family until February 2018 that she considered her evidence to be important and understood that it was necessary to be accurate. She gave evidence that she did her best with the dates. She denied that the statement in her first affidavit that she remained estranged from her mother until February 2018 was true. She gave evidence that she did not intend to convey in her first affidavit that she was estranged from her mother and her sisters when she used the words “my family”. She did not accept that she had been caught out on a lie by giving that evidence. She responded that she had been estranged from both her parents until 2 November 2017 when she went to her parents’ house and did not accept that she had lied in her evidence. She gave evidence that she was pleased to have contact with her mother. At the time she was unsure who to trust, either Matthew or her family. She thought that by that time, her understanding of things that she had been told about her father by Matthew, were not adding up. She described herself as being controlled by Matthew as to the beliefs she was permitted to have about her family and what had gone on. Before that she had no reason to doubt Matthew because they had been together for 15 years and had the children together.
After 2 November 2017 Sarah did not believe that she had exchanged telephone calls with her mother. She gave evidence that Matthew monitored her phone records and that she was afraid to call anyone that she was told to stay away from. She accepted that she had sent emails to her father accusing him of theft. She said that her decision to sever all ties with her father was as a result of Matthew’s influence and that reached a high point in about July 2017. Matthew had her believing that John’s conduct was very serious. She accepted that she sent an email to Shan on 17 August 2017 and that at the time she was very upset with her father, but not with her mother. She was sad that her mother was continuing to support her father and was not on her side. She did not accept that the email conveyed that she wanted no contact with her mother.
She was taken to an email of 18 August 2017. She confirmed that she was very angry with her father. She gave evidence that Matthew was involved in the drafting of the email. Sarah gave evidence that she was not angry with her mother at that time but was “heartbroken”. She said that she was afraid what Matthew would do if he knew that she was in contact with her mother. She gave evidence that the emails reflected what she was being told by Matthew.
Sarah accepted that her youngest son was at pre-school in November 2017. She gave evidence that she sometimes dropped him at pre-school before going to school with the twins and sometimes after. She accepted that her youngest son was not at pre-school on 2 November 2017. She could not recall if he was unwell or in fact suffering from impetigo on that day. She recalled that he was out of sorts but could not recall if he had a temperature. She thought that he had been upset the night before. She was taken to the text message sent by her to Matthew at 12.34pm on 2 November 2017. She accepted that he had been unwell and screaming and crying at some time and that was the reason why she did not send him to pre-school because he was not feeling his best. The purpose of that text message was to inform Matthew that she would not be attending her twins’ birthday dinner. She did not accept that she was expressing frustration over the position with her mother in that text message.
Sarah did not accept that taking her youngest son with her to Manly was against his best interests or that there was any risk of her mother being infected with impetigo. Sarah gave evidence that she was concerned that Matthew would become angry if he knew that she had visited her mother. At the time she felt isolated by both sides, describing herself as “torn”. She described her relationship with Matthew in the period of October 2017 to December 2017 as unstable. At times he would be normal and at other times he would be emotional and erratic. She thought that his moods were unstable. She agreed that at times she was the same and got upset with him and perhaps verbally abused him. She gave evidence that she did not speak frankly with Matthew about what was on her mind. She accepted that it was fair to say that he had a good relationship with the children and that he was reasonable in matters concerning them. She accepted that there were times that they were jovial with each other and engaged in verbal banter. She gave evidence that she tried to keep the peace until she sorted out her own life. She told Matthew that she had joined a dating site to convey the message that she did not want to reconcile and that he should move on with his life.
Sarah was taken to the text message sent by Matthew to Sarah on 7 December 2017 from the Kindergarten Christmas party where he expressed surprise that Shan was there. Sarah accepted that Matthew would have been surprised because she herself was surprised because she did not know her mother intended to go. She knew that her sister was going with her children.
Sarah accepted that she had access to the company email address at various times. She agreed that she had access on the 2 November 2017 but she was not sure if she had used it until 23 January 2017. She did not use that email address extensively but mostly used her own personal email address at that time. She gave evidence that she could not recall when she ceased to have access to that email address.
Sarah accepted that she received the email from Matthew on 31 October 2017 at 2.30pm and that she sent a text message in response to the effect that the link did not work in the Marketlend email. It was put to her that she knew that Matthew wanted her to sign documents for Marketlend as a result of receiving that email. Sarah responded that she knew that he wanted her to sign the Marketlend documents from the meeting on 30 October 2017. She said that she sent the text message to appease him. She gave evidence that to her recollection there was no discussion about the Marketlend document that was printed and brought to her house on 30 October 2017.
Sarah was taken to the email sent from Matthew’s email address to Sarah’s company email address on 2 November 2017 at 1.17pm. She gave evidence that she did not receive that email or attachment. She also gave evidence that she did not see the email sent by her via Docusign on her company email address on 2 November 2017 at 1.30pm. Whilst she accepted that she may have had access to her company email address she could not say that access was for the entire period or not.
She was taken to the email sent from her company email address to Matthew on 4 November 2017 at 6.10am. She gave evidence that she “believed” that she may have sent that email. She accepted that she did send emails from her company email address on 10 November 2017, 28 November 2017 and 23 January 2018. There were also others in evidence including 19 October 2017. Each was signed off “Sent from my iPhone”.
Sarah denied knowing that the company was approaching financiers other than CBA.
Sarah gave evidence that she refused to sign the First Agreement with Marketlend. She gave evidence that she did not recall it being discussed. The First Agreement was put on the table with the Capital Finance Agreement and she was told to sign both. She refused to sign the First Agreement. She gave evidence that she did not go through it and there was no conversation or explanation relating to it. It was suggested to her that her evidence in her second affidavit, that she did not recall it being discussed and that a copy of the First Agreement was not provided to her, was disingenuous because in fact her evidence was that it was presented to her and she refused to sign it. She disagreed that her evidence was deliberately misleading. On 30 October 2017 she thought that Matthew was coming to visit the children and did not know that Mr Mangifesta was coming. She denied the versions of conversations put forward by Matthew and Mr Mangifesta.
Sarah accepted in cross-examination that she had used Docusign before and that she had her account set up on her mobile phone. She agreed that she signed a number of other documents in 2017 by applying her PDF signature. These documents included an electronic lodgement declaration for her 2015 taxation return, a privacy document relating to the Capital Finance Agreement and the agreement with Golf Caravans. She denied using her Docusign account to sign the First Agreements by applying her PDF signature.

Shan’s evidence

Shan deposed that at about 1.00pm on 2 November 2017 that she was on the footpath outside her property watering the plants when Sarah and her son arrived unexpectedly. The date was significant for her because it was the twins’ birthday and the first time that she had any contact with Sarah for a few months following an argument and she was delighted to see her. Shan deposed that they went inside and had coffee while her grandson played with a box of toys in the corner. Sarah and her son left at about 2.15pm to get to school to pick up the twins.
In cross-examination, Shan described her current relationship with Sarah as excellent. She accepted that the visit was unexpected and that she was pleased to see her grandson. She did not notice that her grandson was unwell or “out of sorts”.
Shan agreed in cross-examination that she had received emails from Sarah during the estrangement relating to the allegations that John had misappropriated funds from Sarah and Matthew. Shan gave evidence that she did not think that Sarah had meant what she said in those emails. During the estrangement, Shan tried to keep up with what was happening with Sarah through her other daughters. She also sent texts and emails to Sarah but did not call her. Shan thought that she responded to a few of these texts or emails but she no longer has a copy of them. Shan continued her efforts because she was upset by the rift and she wanted to see her grandchildren.
Shan thought that the estrangement started about March or April 2017, being a few months after a family meeting that occurred in February 2017. As at 25 October 2017 when Shan sent some emails to Matthew her position was that Sarah was not communicating with her but there was no rift between them. She sent some emails to Matthew and he had responded to them on a few occasions.
Shan did not accept that Sarah’s visit on 2 November 2017 brought the estrangement to an end, but it improved the situation a bit. Shan said that she did not believe that Sarah wanted no contact.
Shan was taken in cross-examination to an email that she sent to Matthew and Sarah at 10.15pm on 17 November 2017 seeking permission to take the children to see her mother on 24 November 2017. It was suggested that if she had seen Sarah on 2 November 2017 that she would not have drafted the email in the terms that she did. Shan responded that she did not know if Matthew knew about the visit and that she did not want him to know because he thought that he was very controlling and she was not privy to the state of the relationship between Matthew and Sarah.
Shan was then taken to an email that she sent to Sarah on 10 December 2017 after she saw the children at the Kindergarten Christmas party on 7 December 2017, which relevantly stated:

I loved seeing the kids at kindy on Thurs.

My heart just melted, and couldn’t stop crying and hugging [the youngest son] when he came over to me.

I didn’t think he’d remember me, he was so soft he didn’t know why I was crying.

I’m so happy I got to see them.

Shan gave evidence that she went to the Kindergarten Christmas party without telling Sarah because she was concerned that Sarah would not want her to attend. Shan was an authorised person at the Kindergarten and she thought it would be alright because her other grandchildren were also there. She denied that she wrote about the youngest child in those terms because it was the first time in a long time that she had seen him. She gave evidence that she did so because he was happy that he had recognised her in the crowd.
Shan denied the proposition that the estrangement did not end until after 18 December 2017. She first understood that Sarah’s whereabouts at 1.30pm on 2 November 2017 were important to her case a few months ago from her discussions with Sarah’s legal representatives when she was asked to make a statement. She denied that she had made up the story to help her daughter out of love and affection.

CONSIDERATION

Marketlend’s case lacked independent or contemporaneous evidence to support it

As I have already stated, the independent evidence on the factual issue is equivocal.
Further, Marketlend failed to ensure compliance with its own procedures in a number of significant respects, including by:

requiring Sarah to provide identification documents; and/or

requiring the company to provide contact details for Sarah and her driver licence details as specified in the Application Form; and/or

enforcing the requirement that the documents referred to in 34(d) and 34(e) above were signed in the presence of an independent witness, as defined by those documents; and/or

ensuring that contact was made with Sarah as part of the credit check; and/or

requiring Sarah to provide a voice sample; and/or

requiring the First Agreement to be re-executed in accordance with the email of 7 November 2017 before the loan was settled.

The compliance procedures were simple steps expressly provided for by Marketlend’s documents that could have been enforced prior to advancing any funds to the company and had they been required by Marketlend could have identified Sarah as a willing signatory to the First Agreement.

Further, there was no contemporaneous evidence in the significant volume of emails and text messages passing between Matthew and Sarah in the relevant period that demonstrated that Sarah knew that a concluded agreement had been entered into with Marketlend, that she had signed any document relating to Marketlend or that after 2 November 2017 that she was being asked to sign a document in favour of Marketlend or that her consent was sought for Matthew to do so. There were two emails to Sarah’s company email address relating to the First Agreement and two text messages, one relating to the First Agreement and one relating to the Supply Agreement. None of these contemporaneous communications demonstrated that Sarah signed either of those documents.
In the absence of these sources of independent or contemporaneous evidence, Marketlend’s case relied substantially on the acceptance of Matthew’s evidence.

Material omissions in Matthew’s evidence

There were two material omissions in Matthew’s evidence that called into question its reliability and his veracity.

Matthew’s failure to disclose that he signed Marketlend documents on Sarah’s behalf prior to trial

In his affidavit evidence, Matthew did not depose at any time that Sarah had signed the second version of the First Agreement or the Second Agreement. From the beginning, his evidence was focussed on the allegation that Sarah used her account to apply her PDF signature and initials to the First Agreement and the Supply Agreement.
Matthew failed to depose in his affidavits that he had used his account to sign the second version of the First Agreement, the Second Agreement and the Power of Attorney on Sarah’s behalf. This was evidence that went to the crucial issue in the case that is, the identity of the person signing documents given to Marketlend.
Sarah deposed that she:

denied signing the second version of the First Agreement and the Second Agreement; and

did not authorise Matthew to sign those documents on her behalf. [22]
22. Paragraph 28 of her first affidavit affirmed on 16 November 2018, p824-825 of the Court Book.

Matthew affirmed two further affidavits after this evidence was served, neither of which contained any response to it.
At trial, Matthew gave evidence in cross-examination for the first time that he signed the second version of the First Agreement and the Second Agreement on Sarah’s behalf using his account after obtaining her consent to do so. He did not give any evidence about the Power of Attorney, which I am satisfied he also used his account to sign on her behalf. He did not give any evidence as to why it was necessary for him to sign the documents on Sarah’s behalf.
Marketlend adapted its case to deal with this evidence by choosing to rely on the First Agreement only. Counsel explained, and I accept, that Marketlend’s lawyers did not know about Matthew’s oral evidence until just before the trial was due to commence.
In cross-examination, Matthew gave evidence that he was not asked if he signed the second version of the First Agreement and the Second Agreement during the course of preparing his affidavit evidence. I do not accept that evidence for two reasons:

Marketlend’s case was not limited to the First Agreement and the Supply Agreement at the time when Matthew affirmed his first two affidavits. I do not accept that Marketlend’s lawyers failed to ask Matthew what he knew about the signing of the other documents. This was the crucial issue in the case. In all other aspects of the preparation of the case, Marketlend’s lawyers demonstrated themselves to be competent and diligent and I infer that they continued to be so on this issue.

Sarah’s affidavit evidence raised the issue that she did not consent to Matthew signing the documents on her behalf. This was something that on Matthew’s version of events was untrue. Matthew’s fourth affidavit expressly stated that it was affirmed in response to the paragraphs of Sarah’s affidavits where the statements in [142] above were made. I do not accept that Marketlend’s lawyers failed to ask Matthew for his response to Sarah’s evidence about her lack of consent.

I infer that Matthew deliberately chose to withhold the whole truth in preparing his affidavit evidence by not telling Marketlend’s lawyers that he had used his account to sign documents on behalf of Sarah until shortly before the trial.
I do not accept Matthew’s evidence that he obtained Sarah’s consent to sign any document on her behalf for the following four reasons:

There was no evidence in the contemporaneous emails and text messages passing between Matthew and Sarah to support this claim. This is somewhat surprising because Matthew provided a considerable volume of material to Marketlend initially and eventually to the Court.

Matthew’s evidence was that he “would have” obtained her consent suggested that it was reconstructed. He could not give evidence of any concrete example when he did obtain Sarah’s consent to execute a document on her behalf.

Matthew was evasive in cross-examination on this issue and generally. Matthew gave evidence that he obtained Sarah’s consent verbally. He initially relied on telephone calls, but if there was no record of a call he retreated to other forms of verbal communication for which no records were available. Matthew’s evidence on this point was deliberately vague in an effort by him to avoid it being scrutinised. It was incapable of corroboration and was in my view wholly unreliable.

Matthew gave no explanation as to why it was necessary for him to sign any document on Sarah’s behalf, even if he had her consent. Marketlend required the documents to be signed using DocuSign and Matthew knew that Sarah had an account and that she was experienced in using it. The use of Sarah’s account by her involved little, if any, inconvenience to her. If Sarah was aware of a concluded agreement with Marketlend because she had signed the First Agreement and the Supply Agreement, Matthew did not explain why he did not ask her to sign the documents personally, which was a matter that was wholly within his knowledge.

Sarah’s evidence in [142] above was not challenged in cross-examination. Whilst it could be argued that the evidence was not directly in dispute by reference to the way that Marketlend adapted its case, it was so relevant to the crucial issue that it should not have been left unchallenged. I accept the submission made on behalf of Sarah that if Marketlend believed that it could establish that Matthew’s oral evidence was true, then it did not need to abandon reliance on the second version of the First Agreement and/or the Second Agreement.
I am satisfied that when Matthew signed the second version of the First Agreement on 17 January 2018, the Second Agreement on 7 December 2017 and the Power of Attorney on 18 January 2018 that he knew that he did not have Sarah’s consent to do so. I am satisfied that when he used his account to sign those documents on Sarah’s behalf that he acted dishonestly by doing so.
I infer that Matthew did not disclose to Marketlend that he had signed those documents because he knew that he did not have Sarah’s consent to do so and that the disclosure might lead to the discovery that he had acted dishonestly.

Matthew’s failure to give evidence about the meeting on 13 March 2018 at the Burpengary premises

Sarah deposed in her second affidavit that she attended a meeting with Matthew, Jonathon Mangifesta (Christopher’s brother) and John on 13 March 2018 at the Burpengary premises. Minutes of that meeting, prepared from an audio recording of it, were annexed to her second affidavit and contained the following entries: [23]

Matt going through and printing documents Re: Marketlend and relevant emails

Matt says to Sarah “you never actually signed any of these applications did you” – Sarah “No”

Matt taking to Sarah “because this says I signed on 30^th of the 10^th and that you signed on 17^th of January” Sarah says “Nope” Matt saying “…that was the loan that was executed back in October” Sarah saying “I asked for all of the loan documents from that date” Matt saying “yeah and they never gave them to you, you never got them” Sarah “Nope”

…

[After reading the email from Marketlend of 7 November 2017 aloud]

Matts says “…and you never did that”

23. At p925-926 of the Court Book.

I am satisfied that these statements considered in the context of the document as a whole, amounted to a representation by Matthew that Sarah had not signed any document provided by Marketlend, including the First Agreement, and this was a prior inconsistent statement.
Matthew’s evidence in cross-examination was that he was aware of the content of the minutes and that he did say the words, “you never did that”. That recollection quickly faded to a familiar pattern, that he did not recall what was said at the meeting because he had been put on the spot and that he had no idea that he was being recorded. Matthew did not deny that he said that Sarah never signed any of the applications.
Matthew did not give any evidence on this topic in his affidavits. Marketlend did not deny that it was given a copy of the audio recording of the meeting and it did not seek to admit it into evidence.
I infer that Matthew was not asked to give evidence about the meeting of 13 March 2018 because that evidence would not have assisted Marketlend’s case.
Matthew’s prior inconsistent statement again involved the crucial issue in the case.

Sarah’s knowledge of the First Agreement

I accept Sarah’s evidence that she did not know about the First Agreement or Marketlend until the meeting on 30 October 2017 at the Cleveland property because:

there was no mention of Marketlend or the First Agreement in any email or text message passing between Matthew and Sarah until 31 October 2017; and

in cross-examination Matthew recanted the evidence in his first and second affidavits that Sarah had agreed in the course of a telephone conversation, that took place before that meeting, to sign the First Agreement. This was a concession that Matthew was forced to make when he was confronted with the objective evidence that there was no record of a telephone call between them [24] on the day that the First Agreement was received by Matthew.

24. In the company telephone account.

The meeting on 30 October 2017

Not much turns on whose version of events I accept of what was said at the meeting on 30 October 2017 and that is fortunate because the evidence of each witness was in some way unsatisfactory. However, I am satisfied of the following relevant matters:

Mr Mangifesta’s evidence at its highest proved that Sarah indicated that she was “happy with” the First Agreement up and until the point that he left the Cleveland property. When he left Matthew and Sarah were still there and potentially engaged in further discussions. On Mr Mangifesta’s evidence it is likely that he did not witness a very significant proportion of the discussions between Matthew and Sarah at the meeting. For the reasons set out below, I do not accept Mr Mangifesta’s evidence as reliable and I do not place much weight on it.

Sarah did not sign the paper copy of the First Agreement at the meeting as Mr Mangifesta said that she did with the Capital Finance Agreement.

Sarah did not use her Docusign account to sign the First Agreement as the objective evidence demonstrates that she did with the Capital Finance Agreement.

Sarah used her account to sign the Capital Finance Agreement. The Certificate of Completion for the Capital Finance Agreement demonstrated that Sarah used her account to sign it at 7.23pm on 30 October 2017.

I do not accept Mr Mangifesta’s account of what occurred on 30 October 2017 because his evidence was demonstrated to be unreliable in three significant respects. First, I am satisfied that his evidence that the First Agreement was emailed to him by Matthew was wrong and that he accessed Matthew’s company email account to print it to bring it to the meeting. This was established by the following objective evidence:

No email from Matthew to Mr Mangifesta dated 30 October 2017 was produced in evidence.

The Envelope History for the First Agreement and the Capital Finance Agreement indicated that they were accessed from the Burpengary premises at about 7.30pm on 30 October 2017, which was a time on Mr Mangifesta’s evidence that he was at the Burpengary premises, but Matthew was not.

The email from Matthew’s company email address to Sarah’s company email address sent at 1.17pm on 2 November 2017 was signed off “C”, which Mr Mangifesta accepted was how he usually signed off on emails.

The First Agreement was viewed by someone with access to Matthew’s company email account at the Burpengary premises at 1.53pm on 2 November 2017 which was a time established by the mobile telephone location evidence that it was unlikely that Matthew was in the vicinity of the Burpengary premises.

Matthew gave evidence that Mr Mangifesta had access to his company email account.

As noted above, Mr Mangifesta’s evidence was couched in terms that he did not recall having access to Matthew’s email account, but my impression when he gave that evidence, was that he was intending to convey a genuine disbelief that he did have access and this was not a case where inherent in Mr Mangifesta’s lack of recall was an acceptance that he may have done so. Even when he was taken to the objective evidence demonstrating that he did have access to Matthew’s company email account, he maintained his position that he did not recall having access.
Second, Mr Mangifesta was at pains to distance himself from being significantly involved in the meeting between Matthew and Sarah on 30 October 2017. There was no mention of this limited involvement in the meeting in his affidavit. His affidavit evidence did not paint the complete picture of what occurred and was no more than a convenient reconstruction of his perception of what occurred, rather than a genuine recollection of any conversation that occurred between the people present at the Cleveland property on 30 October 2017.
Third, Mr Mangifesta’s evidence is not easily reconcilable with the objective evidence set out in [159](2)-(3) above. Mr Mangifesta’s evidence was that the First Agreement was left with Sarah to arrange her signature on it using DocuSign, but that was not possible unless she had been given an electronic version of the document.
I do not accept Matthew’s account of what occurred at the 30 October 2017 meeting for three reasons. First, there are a number of inconsistencies between Matthew’s and Mr Mangifesta’s evidence. I infer from Mr Mangifesta’s evidence that the meeting lasted for least 60 minutes but probably longer. Matthew’s evidence was that it lasted 20 minutes. Matthew gave evidence that the meeting started at 7.30pm or 8.00pm and that Mr Mangifesta arrived at about the same time that he did. The objective evidence proved that Mr Mangifesta was still at the Burpengary premises at 7.32pm accessing Matthew’s emails and accordingly the earliest that he could have arrived at the Cleveland property was after 8.30pm but that he probably arrived later than that. Mr Mangifesta said that he left at 10.00pm or 10.30pm. The accounts of Matthew and Mr Mangifesta of what occurred at the meeting were significantly different. Matthew’s evidence was that they all went through each document together in the course of the meeting. Mr Mangifesta’s evidence was that he had a very limited involvement in the meeting and he could not recall any discussion about the First Agreement other than what is set out above.
Second, Matthew’s recount of the conversation relating to the First Agreement is internally inconsistent. He deposed that all three of them went through the First Agreement at the meeting, which is inconsistent with Mr Mangifesta purporting to ask Matthew and Sarah, if “everyone” had read it.
Third, Matthew’s evidence about what occurred at the meeting was vague and non-committal and best summed up by his own statement in cross-examination, “I honestly don’t recall much of the meeting”.
Sarah’s evidence of what happened at the meeting on 30 October 2017 was also internally inconsistent. She could not recall any discussion relating to the First Agreement but gave evidence that she refused to sign it when it was put in front of her. However, her evidence sits more comfortably with the findings of fact that I have made that she did not sign the First Agreement by any means on that night.

Matthew’s mobility on or about 2 November 2017

I do not accept Matthew’s evidence that his ability to travel was restricted to the extent that he could not have driven to the Cleveland property and used Sarah’s account to sign the First Agreement on 2 November 2017.
The mobile telephone location evidence demonstrated that Matthew was at the Burpengary premises on 25 and 31 October 2017, 1, 3, 6 and 8-11 November 2017. He also travelled east towards Brisbane to the Bowen Hills, Kangaroo Point and Morningside areas on 26-29 October 2017 and 1 November 2017.
I am satisfied that Matthew drove to the Cleveland property on 30 October 2017. I do not believe his evidence that he could not recall how he got there on that night. He appeared to me to be evasive when answering these questions in cross-examination and that his failure to recall was not a genuine effort to answer the questions.
Matthew was fitted for a “moonboot” on 1 November 2017 and I infer that his mobility improved from that time onwards.
Matthew accepted in cross-examination that he was at the Cleveland property on 5 November 2017 and made a telephone call from there. The company’s telephone account records him as making the call at 3.49pm.
The objective evidence and the evidence that Matthew gave that was against his interest demonstrates that the evidence he gave in his fourth affidavit that “I had great difficulty with mobility and was unable to drive” and “I spent most of my time recovering from by broken leg residing at my parents’ house” was grossly exaggerated.
Matthew gave evidence by reference to the mobile telephone location evidence that he was at his parents’ home on 2 November 2017. That evidence only demonstrated that he was in the Manly vicinity in the period before about 10.34am and after about 3.29pm. His whereabouts in the meantime was not verified by any other source, independent or otherwise.

Other problems with Matthew’s evidence

There were also a number of other inconsistencies in Matthew’s evidence of which the following matters are examples.
First, Matthew denied having access to Sarah’s company email account but the objective evidence demonstrated that this evidence was untrue.
Second, Matthew gave inconsistent evidence about the state of his relationship with Sarah immediately after the separation. On the one hand his evidence was that he obtained the consent of Sarah to sign documents on her behalf in the ordinary course of conversations between them and on the other had that she was at times “hot and cold” and that they were going through a “nasty separation”.

Matthew’s advocacy against Sarah

Matthew became an advocate in his evidence for the position that Sarah did not visit her mother on 2 November 2017 because they were not in contact at that time. Matthew’s position was informed by his impression of the emails and text messages that he had seen in the relevant period, but he did not have any first-hand knowledge of the true position. This evidence demonstrated a determination to harm Sarah’s interests at all costs and a failure to concede that he did not know the true position.
Matthew’s insistence as to his asserted knowledge of Sarah’s contact with her family, supports my acceptance of Sarah’s evidence that her communications were being monitored by Matthew, in an effort to exert control over her.

Matthew’s motive to sign the First Agreement using Sarah’s account

Matthew had a motive to sign the First Agreement using Sarah’s account because he needed working capital for the company. Sarah had no knowledge of how the loan funds were disbursed and no involvement in spending the money.

Matthew’s motives to give false evidence

Matthew had a number of reasons to give false evidence. Matthew gave evidence that he co-operated with Marketlend out of self-interest because Sarah’s case consisted of a series of lies about him. It was apparent from his evidence that he had very little relationship left with Sarah and that he still harboured considerable ill will towards John. Further, if he did not give the evidence that he did, or his evidence is not accepted, it may expose him to allegations that he acted dishonestly in his dealings with Marketlend.

Matthew’s demeanour

In giving evidence, Matthew came across on AVL as fairly flat. He tried to defend certain positions, like his immobility in the relevant period, but for the most part had a poor recall for detail and tended to reconstruct his evidence by saying that events “would have” occurred. His strong feelings of resentment towards John came through his evidence. Overall, I was left with the impression from my observations of his evidence that he was committed to his version of the story without being able to provide the detail to back it up or avoiding any requirement to do so.

Findings on Sarah’s evidence

Sarah was a fairly good witness. There were some parts of her evidence that I do not accept, but I am satisfied that she was doing her best to tell the truth. The events that she was being asked to recall occurred at a very difficult time for her. She had separated from Matthew and was estranged from her family. She had the day to day responsibility for the children who were also dealing with the separation of their parents.
Significant parts of her affidavit evidence were proven to be true by objective facts being established, particularly by reference to the metadata evidence. For example, her denials of signing the Second Agreement, the second version of the First Agreement and the Power of Attorney were established as truthful by the expert evidence. In addition, her denial that the telephone call of 30 October 2017 did not occur was confirmed by the telephone records.
I accept her evidence that she felt controlled by Matthew and that she kept some of her dealings with her family from him, including the visit to her mother on 2 November 2017. I also accept Sarah’s evidence that Matthew was monitoring her communications.
Much of the cross-examination of Sarah focussed on the proposition that she did not go to her parents’ house on 2 November 2017 because she was still estranged from Shan and John at that time. This proposition was sought to be made good by reference to the contemporaneous email and text messages between Matthew, Sarah and Shan at about that time. The major difficulty with this approach was that by and large it treated each statement in those communications as truthful and definitive. However, a fair reading of those communications individually and as a whole demonstrates that they were casual communications that were capable of being interpreted in a number of ways.
For example, it was assumed that the content of Sarah’s text message to Matthew sent at 12.34pm on 2 November 2017 was an accurate statement of the state of affairs they existed on that day, but I do not accept that it was. The purpose of the text message was for Sarah to excuse herself from the twins’ birthday dinner that Matthew and his parents were attending and I am satisfied that Sarah emphasised that she was under pressure from a number of sources to sell that outcome to Matthew and thereby avoid tension between them. I am not satisfied that the content of this text message proved any significant matter, such as the youngest son’s health or demeanour on 2 November 2017.
There were some inconsistencies in Sarah’s evidence but in my view they were not significant. For example, in her first affidavit she did depose that she was estranged from her family until February 2018. The date of 2 November 2017 was not significant at the time when she affirmed her first affidavit, because Marketlend at that point were relying on documents executed in January 2018. Sarah was challenged on her recollection at other points in time, particularly when she affirmed each of her affidavits. It was reasonable for her evidence to change on some of these occasions because her memory had been refreshed by later access to contemporaneous documents or objective evidence.
There was nothing about Sarah’s demeanour in giving evidence that caused me to doubt that she was trying to do her best to tell the truth when giving her evidence.
Overall, I was left with the impression that Sarah’s version of events was far more likely and supported by the objective contemporaneous evidence that was available.

Findings on Shan’s evidence

Shan was an impressive witness. There was nothing about her evidence or the way that she gave it that gave me any reason to doubt her veracity. I am comfortable with this finding notwithstanding that she had a desire to assist her daughter by giving evidence.
Her evidence was relatively simple. She had a reason to remember Sarah’s visit because they had been estranged for a considerable period, and it was the twins’ birthday.
She was challenged on the content of a number of contemporaneous emails and text messages, but to no avail. I am satisfied that her explanation of those communications was both plausible and truthful.
Marketlend submitted that I could accept Shan’s evidence but still find that Sarah was at the Cleveland property at 1.30pm. I am not satisfied that this scenario was possible. To the contrary, I am satisfied that it was more likely that Sarah was with Shan at her house at 1.30pm on 2 November 2017 and not at the Cleveland property.

Failure to call John or Leo Tyndall

Marketlend contended that John was a witness available to Sarah who could have given evidence in her case and that the failure to call him was unexplained. I do not accept that John was a witness who could have given relevant and useful evidence in Sarah’s case. John was not at home on 2 November 2017 and could not have given direct evidence about Sarah’s visit with Shan on that day. Further, the evidence given by Sarah about what happened at the meeting on 13 March 2018 was not contradicted and accordingly there was no need to call John on that issue.
Sarah contended that Leo Tyndall was a witness available to Marketlend who could have given evidence in its case and that the failure to call him was unexplained. Matthew provided certain documents to Mr Tyndall as evidence to support Marketlend’s case against Sarah. Sarah contended that Mr Tyndall was in a position to explain why certain documents that she expected to be available were not provided or relied on. The fact that certain documents were not available is neutral. Those documents may not have been provided by Matthew to Mr Tyndall. I am satisfied that Marketlend relied on any document in its possession that would assist its case.
It is not appropriate to draw any inference against either party for the failure to call John or Mr Tyndall.

Matthew’s modus operandi

Marketlend submitted that Matthew operated by reference to an observable modus operandi in signing documents on Sarah’s behalf, in that he used his account to apply a typescript signature for her from 7 December 2017 onwards and that this was distinguishable from when Sarah used her account to apply her PDF signature, prior to that date. It was contended that from this pattern it could be inferred that Sarah used her account to sign the First Agreement.
This argument assumes that Matthew did not have anything to do with using Sarah’s account to sign the First Agreement. In the circumstances, this assumption is false.
For the reasons given, I am satisfied that Matthew attended the Cleveland property on 2 November 2017 and used Sarah’s account to sign the First Agreement because she did not sign it when he asked her to. He used Sarah’s account to make it appear as if Sarah had signed the First Agreement to comply with Marketlend’s requirement that the directors of the company provided personal guarantees.
On 7 November 2017 Marketlend advised Matthew that the First Agreement had not been executed in accordance with its compliance procedures. Thereafter, Marketlend accepted documents that were signed by Sarah through Docusign where Matthew used his account to purportedly sign the document for Sarah. This first occurred on 8 November 2017 when Matthew “re-executed” the Supply Agreement on Sarah’s behalf using his account. In other words, it was no longer necessary for Matthew to go to elaborate lengths to maintain the deception that he was responsible for.

Conclusion

Taking into account all of the evidence, I am not satisfied on the balance of probabilities that Marketlend has established that Sarah used her DocuSign account to sign the First Agreement on 2 November 2017.
I am satisfied on the balance of probabilities that that Matthew used Sarah’s account to sign the First Agreement without her knowledge or consent because she did not sign it when he asked her to do so.

Orders

I make the following orders:

Verdict for the second defendant.

The plaintiff is to pay the costs of the second defendant as agreed or assessed, on the ordinary basis.

I grant leave to the parties to approach my Associate to relist the matter if an alternate costs order is sought.

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Endnotes

Decision last updated: 09 July 2020

Medium Neutral Citation:	Marketlend Pty Ltd v Blackburn [2020] NSWDC 358
Hearing dates:	25-27 March 2020, 31 March 2020, 15 April 2020
Date of orders:	9 July 2020
Decision date:	09 July 2020
Jurisdiction:	Civil
Before:	Scotting DCJ
Decision:	(1) Verdict for the second defendant. (2) The plaintiff is to pay the costs of the second defendant as agreed or assessed, on the ordinary basis. (3) I grant leave to the parties to approach my Associate to relist the matter if an alternate costs order is sought.
Catchwords:	CONTRACT – Formation – Agreement – Execution of documents by electronic means EVIDENCE – Burden of proof – Civil proceedings
Legislation Cited:	Evidence Act 1995
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Jones v Dunkel (1959) 101 CLR 298 Lithgow City Council v Jackson (2011) 244 CLR 352 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 Palmer v Dolman [2005] NSWCA 361 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia(No 3) (2010) 267 ALR 494 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) [2011] FCA 1126 Re B (Children) (Remote Hearing: Interim Care Order) [2020] EWCA 584 Spiliotopoulos v National Australia Bank Ltd [2017] NSWSC 971 Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1
Category:	Principal judgment
Parties:	Marketlend Pty Ltd (Plaintiff) Matthew Charles Blackburn (First Defendant) Sarah Louise Blackburn (Second Defendant) Blackburn Caravans Pty Ltd (Third Defendant)
Representation:	Counsel: J Willis (Plaintiff) A Laylee (Second Defendant) Solicitors: Emerson Lewis Lawyers (Plaintiff) Kelly Lawyers (Second Defendant)
File Number(s):	2018/87969
Publication restriction:	None