McCabe, Rosemary Therese v Camilleri, Anthony Joseph

[1996] FCA 552

IN THE FEDERAL COURT OF AUSTRALIA                  ) 
  )  
NEW SOUTH WALES DISTRICT REGISTRY                 )  No NG690 of 1995
  )  
GENERAL DIVISION  )     

BETWEEN:  ROSEMARY THERESE McCABE

Applicant

AND:  ANTHONY JOSEPH CAMILLERI

Respondent

Coram:  Davies J.
Date:  18 June 1996
Place:  Sydney

REASONS FOR JUDGMENT

This claim seeks the setting aside of a mortgage entered into between the applicant, Rosemary Therese McCabe and the respondent, Anthony Joseph Camilleri. The applicant relies on ss.51AA, 51AB and 52 of the Trade Practices Act 1974 (Cth) and relief is sought under s.87 of the Trade Practices Act.  Relief is also sought under the general principles of law regarding unconscionable conduct and undue influence.  There is a further claim for payment of what are said to be assigned debts, assigned to Ms McCabe by her husband, Mr Thomas Feichtinger, and said to be owed to him by the respondent.

The Fair Trading Act 1987 (NSW) and the Contracts Review Act 1980 (NSW) are not relied upon, indeed expressly disclaimed by the counsel for the applicant.

I shall set out only briefly the substance of the claim as put by Ms McCabe and her husband, Mr Feichtinger.  Mr Feichtinger was a qualified motor vehicle mechanic  having a particular expertise with BMW motor vehicles.  The respondent, Mr Camilleri, an architect, was one of his clients.  Mr Feichtinger gave evidence that, in about September 1994, he was asked by Mr Camilleri to purchase a damaged BMW 325 IS motor vehicle ("the vehicle") on Mr Camilleri's behalf and to re‑build it to Mr Camilleri's specifications.  He said that he discussed the matter and told Mr Camilleri that the price would be between $75,000 and $80,000, that there would be a first instalment of approximately $42,500 on the purchase of the vehicle to be paid direct to the auction house, a second instalment of approximately $23,000 about the middle to end of November of that year, and that the work would be completed no later than early February 1995 when the balance would be payable.  Mr Feichtinger said that, at the time, he contemplated that the balance would be approximately $9,500 to $14,500.

Mr Feichtinger gave evidence that, around this time, he and his wife decided to purchase a block of land in Queensland in his wife's name.  Ms McCabe paid $4,200 of the deposit and $900 for the stamp duty out of their joint bank account and Mr Feichtinger paid the remainder of the deposit.  The overall price was $44,000.  That contract was entered into on 10 November 1994.

Mr Feichtinger gave evidence in his affidavit of 24 October 1995 that the second instalment of $23,000 which was payable to him by Mr Camilleri was paid at his request directly into the trust account of Payne, Butler & Lang, the Queensland solicitors dealing with the purchase of the property, and was used on the settlement of the property on 22 November 1994.  In his oral evidence, however, Mr Feichtinger spoke of the $23,000
as being lent to him in respect of work to be done.  That is simply one of the inconsistencies in Mr Feichtinger's evidence.

Mr Feichtinger said that, towards the end of November 1994, he calculated that he would need approximately $30,000 to purchase the parts needed to complete the work on the vehicle and he asked for a loan from Mr Camilleri.  Mr Camilleri said that he could not give him $30,000 straight away.  Following that conversation on 2 December 1994, Mr Camilleri gave to Mr Feichtinger an amount of $4,000 in cash which was paid into the joint bank account.

Mr Feichtinger gave evidence that, on 9 December 1994, Mr Camilleri showed him a document which dealt with the loan of $30,000 and that Mr Camilleri said:-

"I'm not going to give you any more without some sort of security ...  I want you to sign this Agreement .. I want a Mortgage over the land in Queensland as security." 

Mr Feichtinger said to Mr Camilleri, according to his evidence:-

"The land is Rosemary's.  She won't sign a Mortgage over it." 

Mr Camilleri then said:-

"Don't worry about that, I'll fix it.  Just sign this Agreement any way." 

Mr Feichtinger also gave evidence that Mr Camilleri said:-

"... if you don't sign it I can cause problems for you because you're a bankrupt and people who are bankrupt aren't allowed to borrow money ...  and because you've been dealing with people under a false name - Thomas McCabe, not Thomas Feichtinger."

I pause at this moment to say that I accept Mr Camilleri's evidence that he did not say that and that he did not know that Mr Feichtinger was an undischarged bankrupt.  I also accept his evidence that he did not advise Mr Feichtinger to change his name.  That is a matter of little significance in the whole of these proceedings, however. 

The loan agreement, to which I shall later refer in more detail, was signed on 9 December and, later on that day, an amount of $14,000 was paid into the joint account of Ms McCabe and Mr Feichtinger by Mr Feichtinger. 

Mr Feichtinger gave evidence that later Mr Camilleri said that he wanted the mortgage to be signed by 22 December and was told that Ms McCabe would not give a mortgage.  According to Mr Feichtinger's evidence, Mr Camilleri said:-

"Do you think you could get Rosemary to sign a blank piece of paper?  I could then write the agreement on to that paper." 

and then said:-

"What if I arrange it through my solicitor so that she is in a hurry and doesn't have time to look at the document or think about it.  It will be just before Christmas and she'll be so busy and rushed she won't read the document or even look at it before she signs it, especially if you make sure she's got Kye with her at the time." 

Mr Feichtinger, according to his evidence, said to Mr Camilleri:-

"I'll talk to Rosemary and see what I can do.  I'm not going to tell her what the full amount is.  I don't want her to know that.  I don't know whether I'll be able to get her to sign." 

Thereafter, according to Mr Feichtinger's evidence, when he spoke to his wife, she said she was not going to sign the mortgage.  He finally said to her:-

"Just sign the Mortgage or we'll lose everything."

Subsequently, after arrangements were made and the mortgage was signed, Mr Camilleri said to Mr Feichtinger, according to Mr Feichtinger's evidence:-

"Rosemary has signed the Mortgage.  I arranged it so that by the time she actually signed the Mortgage, she was so stressed that she signed it without thinking about it or even looking at it.  She didn't notice that the amount and other details were not written on the document.  She left there not knowing what she was doing ... See I told you we would fix her." 

That is the substance of Mr Feichtinger's evidence, except that it appears that he continued with the work on the vehicle and continued to borrow some smaller sums of money from Mr Camilleri until, in January 1995, he was arrested on a criminal charge and was subsequently convicted.  At the time of this trial, Mr Feichtinger is still in prison.  The car was therefore not completed by Mr Feichtinger and had to be worked on by others.

Ms McCabe said in substance in her evidence that, on about 19 December 1994, her husband said to her that he had run out of money and needed to borrow $20,000 from Mr Camilleri to buy parts for his car and that Mr Camilleri wanted a mortgage as security for the money. 

She initially said, according to her evidence, that she would not sign a mortgage, but, after further discussions with her husband, she agreed to do so on the evening of 22 December 1994.  She said that, on the morning of 23 December, she was told that Mr Camilleri wanted her to go to his solicitor's office in Burwood but she told her husband
that she would not go to Burwood.  Later that morning, at about 11.30 am, she received a telephone call from Mr Camilleri on her mobile phone.  Her son Kye had just fallen down some stairs and bumped his head and was crying.  Ms McCabe said that she therefore had to conduct the telephone conversation while she was distracted.  She gave evidence that Mr Camilleri told her that the mortgage should have been signed some days ago and that she was supposed to be there at Burwood to sign the mortgage and that he had arranged that with her husband.  She said Mr Camilleri said to her:-

"You must sign the Mortgage today.  If it is not signed today, there will be a penalty."

She gave evidence that she told Mr Camilleri that she had a few more things to do and would try to get there as soon as possible, by 1 pm or 1.30 pm.  She said that Mr Camilleri was "very belligerent in his manner" and yelled at her.

Ms McCabe gave evidence that when she went to the office of the solicitors, John Carmody & Co, around 1.30 pm, she was told that Mr Carmody was at the bank and she was asked to wait.  She was subsequently told that Mr Camilleri had telephoned to say that his car had broken down and he would not be able to get there but that he had asked that she should sign and he would sign later.  She said that, after waiting some time, a female person, who has now been identified as Mr Carmody's secretary, Mrs Christine Nash, came back into the reception area. 

According to Ms McCabe's evidence, Mrs Nash placed the mortgage on the reception desk, there was a piece of white paper stapled over the top of it and the white paper was as wide as the document but not as long.  The piece of paper stapled over the top of the document covered all the printing on the document except the signature provisions at the foot of the document.  Ms McCabe said that she assumed that mortgages were supposed to look that way and that she was told: "You need to sign here."  She said she then signed the document without attempting to look underneath the piece of paper which was stapled to it and without looking further at the document.

In her cross-examination, after having been shown the duplicate of the mortgage which she had signed and which had no staple marks on it, Ms McCabe said that, if the white paper had not been there, it must have been the case that the sum of the mortgage, $30,000, had not been inserted for she did not see it.  In her evidence, Ms McCabe said that she was stressed by having to wait and stressed also by the fact that her son, Kye, was a very active child and was running around.

Mr Camilleri gave evidence that on 29 September 1994, he entered into a written agreement with Mr Feichtinger with respect to the purchase and rebuilding of the vehicle.  That document is in evidence.  It is some three pages in length, and provided for a payment by Mr Camilleri of $40,000 as security and first instalment, and for two further payments, a sum of $15,000 on the vehicle being completed to a certain specified stage and a final instalment of $15,000 on completion of the vehicle by a specified time, the work to be done in the third period being mainly the completion of the motor and the bringing of it up to specification.

Therefore, according to Mr Camilleri's evidence, there was an agreement for the purchase of the damaged vehicle and its rebuilding for a total price of $70,000.  Mr Camilleri gave evidence, which I accept, that there was no agreement for any variation in the price.
           Mr Camilleri gave evidence that the vehicle was purchased and that he paid the $40,000.  There is no evidence of any request for the first instalment of $15,000 and the evidence has not satisfied me that that sum actually became payable. 

Mr Camilleri gave evidence that, on 17 November 1994, Mr Feichtinger telephoned him and said that he and his wife were buying some land in Bundaberg, that the contract required settlement on 21 November 1994 and that, if they did not pay, they would lose the deposit.  Mr Feichtinger said that everybody was late paying him and requested a loan of $30,000 for ten weeks.  Mr Camilleri said that he asked Mr Feichtinger to send him the letter which he had received from his solicitors.  On 17 November, Mr Camilleri received by facsimile from Mr Feichtinger a copy of the letter from Payne, Butler & Lang, the Queensland solicitors.  On 19 November, Mr Feichtinger rang him again and asked about the loan.  Mr Camilleri gave evidence that he said that the only way he could organise the loan was to get a first mortgage over the land and that the loan amount of $30,000 plus interest of $5,000 would have to be repaid by mid-February 1995.  Mr Camilleri, according to his evidence, told Mr Feichtinger that he should get his solicitor to prepare the mortgage document and Mr Feichtinger said he would ring his solicitor.  Following this conversation, a further facsimile enclosing a copy of the contract of sale was sent to Mr Camilleri on 19 November. 

On 21 November, according to Mr Camilleri's evidence, Mr Feichtinger telephoned and said that his solicitor was too busy to prepare the mortgage document and he asked if Mr Camilleri could just write an agreement.  Mr Camilleri gave evidence that he said to Mr Feichtinger:-

"I'll trust you for the moment, but I can only organise $23,000 today.  The remainder will be made available as soon as the mortgage agreement is in place." 

Mr Camilleri was then asked to ring the Queensland solicitors, which he did, and found out from them the details of their trust bank account.  On 21 November Mr Camilleri deposited the sum of $23,000 into his bank to be forwarded to the credit of the Queensland solicitors' trust account. 

Mr Camilleri then gave evidence that, on 2 December 1994, Mr Feichtinger telephoned him and asked him if he could lend him $4,000 for a week and that he would pay back the $4,000 plus $200 interest in a week's time.  Mr Camilleri agreed to do so and a short written agreement was made and signed on that day for the loan of $4,000 to be repaid together with interest of $200 on Friday, 9 December 1994, the loan being expressed to be a temporary loan for a period of one week only.  The agreement provided for a late payment penalty.

Mr Camilleri gave evidence that, on 9 December, Mr Feichtinger telephoned him and asked for a further loan and that Mr Feichtinger said:-

"I do not have the $4,200 that I'm supposed to pay back to you today and I need some more money.  How about we make the $4,200 part of the $30,000 loan that you're making to me?"

Mr Camilleri replied:-

"That would mean that I've given you $23,000 plus $4,200, making $27,200 so far".

On Mr Feichtinger's request to be paid the balance of the $30,000, Mr Camilleri said:-

"I'll give you the $2,800 today but you'll have to sign an agreement to record what I've given you". 

An agreement was then typed up and signed on that day.  It read:-

"I, Mr THOMAS McCABE, hereby state that I have received from Mr TONY CAMILLERI the sum of Thirty Thousand Dollars ($30,000) by way of direct deposit into Advance Bank Account Number 061496003 for the amount of $25,800 on 9th December 1994 and credit of the payment of $4200 due today as repayment of the loan of 2nd December 1994.  This amount represents a temporary loan for a period of ten weeks only.  The interest payable on this loan shall be five hundred dollars ($500) per week or part thereof.  The full amount of the loan ($30,000) together with the accrued interest ($5,000) making a total of thirty five thousand dollars ($35,000) will be repaid in the form of a Bank Cheque on Friday 17th February 1995.  Should the loan not be repaid in full by that date then the penalty for late payment shall be $500 per calendar day or part thereof calculated to the date of actual payment plus any legal expenses incurred in recovering the debt.

As security for this loan, Mr THOMAS McCABE will arrange to provide a Mortgage registered with the Land Titles' Office over the property known as Lot 30 Davenport Road, Kinkuna Bay, via Bundaberg, (Lot 30 on RP 840110, County of Cook, Parish of Barns, Town/County of Coonar) in the favour of Mr TONY CAMILLERI, for the sum of $40,000.  If the said mortgage is not registered by 16th December 1994, then the full amount of the loan ($30,000), plus one weeks interest ($500) will be due and payable by bank cheque on 16th December 1994.  Should this total amount of $30,500 not be repaid in full on 16th December 1994 then the penalty for late payment shall be an additional $500 per calendar day or part thereof calculated to the date of actual payment plus any legal expenses incurred in recovering the debt."

Mr Camilleri gave evidence that he intended to deposit the sum of $2,800 into the joint account on that day but, after signing the agreement, he was told by Mr Feichtinger that he required some more money and was asked to put $14,000 into the account.  He agreed to do that and paid in the sum of $14,000 on that day.

Mr Camilleri gave evidence that, in his mind, the $30,000 was calculated by reference to the $23,000 paid in, the $4,200 which was repayable on 9 December and the further sum of $2,800 which was to be paid on that day.  That does not exactly accord with the written agreement set out above which refers to the direct deposit into Advance
Bank account number O61496003 of the amount of $25,800. I take that bank account number to be the joint bank account.  The $23,000 was sent to the trust account of the Queensland solicitors and not into that account.  Nevertheless, I think it probable that the parties dealt with the matter on the footing that Mr Camilleri has stated.  Mr Camilleri does not seem to be fully familiar with all aspects of legal documents or with conditions attached to lending money and I think that it is probable that there was simply an error in the drawing up of this document. 

Mr Camilleri explained why he lent the $14,000 rather than the $2,800 and other subsequent sums, when they aggregated to more than $30,000.  He gave evidence, which I think he gave truthfully, that the mortgage, as expressed in the second paragraph of this agreement, was to be for the sum of $40,000, that in fact he had been informed that the value of the land was $48,000 and he thought that once he received a mortgage he would be covered.  He was not correct in that view and, of course, he was, in due course, informed by his solicitor that the mortgage could not be for $40,000 but would be for the sum agreed, namely the $30,000 lent and $5,000 interest.

Mr Camilleri gave evidence that, subsequently, Mr Feichtinger asked him if he could organise a solicitor to do the mortgage, that he organised John Carmody & Co and that, after speaking with Mr Feichtinger, he made an arrangement for 11.30 am on 23 December 1994.  Mr Camilleri said that, on that date, he rang Carmody's office about 11.35 am to say that he himself could not get there and was told that Ms McCabe had not arrived.  He subsequently rang Mr Feichtinger and was given, by him, Ms McCabe's mobile phone number.  Mr Camilleri then rang Ms McCabe on that number.
           According to Mr Camilleri he said to Ms McCabe:-

"Are you on your way to the solicitors' office?  He was expecting you at 11.30?"

Ms McCabe replied:-

"No, I'm at Gladesville at the moment.  I've got a few more things to do.  I'll will try to get there by about 1:00 pm or 1:30 pm". 

Mr Camilleri said that he informed Ms McCabe that he would ring the solicitor and tell him to expect her and that he did so.

Evidence was given that some further loans, which I need not detail, all loans of small amounts, were made.  The vehicle was not completed.  On 21 January 1995, Mr Feichtinger was arrested, the vehicle was taken to Bee Ems Car Service Centre where work was done to complete it to a roadworthy and registered condition at a cost of $21,085.  Evidence was given, which I accept, that the additional parts and labour cost required to complete the vehicle up to the standard nominated in the agreement of 29 September 1994 would be approximately $16,200.

That is the substance of the evidence, save that of Mrs Nash to which I shall later refer. 

I think I can put aside claims made under the Trade Practices Act. Mr Camilleri was not involved in the "supply or possible supply of goods or services" so that s.51AB would not apply. Sections 51AA and 52 also would not apply because the loan made was not a loan made "in trade or commerce". I am of the view that what occurred was simply a loan between two people, the lender being a person not engaged in business and, as

I shall mention later, the moneys being lent to assist people to buy land for a private home. That is not a matter which would be held to be conduct "in trade or commerce" under ss.51AA and 52 of the Trade Practices Act.

I am further of the view that ss.51AA and 52 have no application because of the failure to satisfy the requirements of s.6(3) of the Trade Practices Act, which requires that the conduct complained of "involves the use of ... telephonic services." There were some telephone conversations between Mr Feichtinger and Mr Camilleri which may fall within this provision. However, the conversation relied on is the telephone conversation between Mr Camilleri and Ms McCabe on 23 December. What was said to be the conduct contravening ss.52 and 51AA on that occasion was the failure to disclose the true ramifications of the mortgage, that is, the failure to explain that it was for $30,000 and not $20,000, and the failure to inform Ms McCabe that she ought to obtain independent advice. The conversation, however, was a conversation which was, I think, simply limited to the time at which Ms McCabe would attend at the solicitor's office and I think that nothing was said on that occasion which constituted either a breach of s.52 or unconscionable conduct under s.51AA of the Trade Practices Act. 

Turning to the general law relating to unconscionable conduct, the case of Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 has been referred to as well as the decision of the Court, of which I was a member, in National Australia Bank Ltd v Nobile (1988) 100 ALR 227. The type of claim made in this present case was also dealt with by me in another case under the Contracts Review Act, McDonald v Esanda Finance Corporation Ltd (unreported, 27 May 1993).  The factors that I took into account in that case, when setting aside a guarantee, are set out in the following paragraph:-

"In the light of these facts, it seems to me that the guarantees should be declared void and set aside under the Contracts Review Act.  Mrs McAuley did not wish to sign the guarantee and made that known to both her husband and Mr Smith.  She was put under pressure by her husband and by Mr Smith to sign the document.  The nature of the obligation was not explained to her and she did not obtain independent legal advice.  Mrs McAuley no longer had any connection with the business of Lithgow Motors and it was not appropriate to place her in the situation where her interest in the matrimonial home and her personal assets were at risk, unless she fully understood the nature of the obligation she was undertaking and obtained or was encouraged to obtain independent advice with regard to it.  The transaction was unconscionable and unjust so far as she was concerned."

Had there been similar facts in this case I may well have come to the same view.  I approach this case on a like basis. 

I think that I should say at once that the case put by Ms McCabe and Mr Feichtinger was an improbable one.  In my general experience of lenders and borrowers, it is rare that lenders engage in the sort of fraud that is alleged in this case and it is much more often the case that lenders are duped into lending money by misrepresentations that have been made to them.

It would be a surprising matter if, in fact, Mr Camilleri did all those things that Mr Feichtinger said that he informed him he was going to do.  He would have to be a very extraordinary man indeed to set out deliberately in such a way to defraud a person such as Ms McCabe. 

This is rather a case where money was extracted from a lender and, in the end, of course, the lender was left wanting and there was no repayment.  That is a scenario
that we see so often in the Court and it is a far more probable event than the deliberate fraud which was alleged. 

Not surprisingly, the claim as made unravelled in the course of the evidence.  Mr Feichtinger is an undischarged bankrupt, and has been arrested and imprisoned for crime, so the applicant's case started off with some doubt about his credit.  Another significant matter is that, at the relevant time, cheques on the joint bank account were regularly dishonoured.  I doubt that I have seen any other bank statement in which so many dishonours appear.  The dishonours commenced before the sum of $23,000 was asked for and paid into the Queensland solicitors' bank account. 

So the position was that, at a time when Mr Feichtinger was an undischarged bankrupt and at a time when cheques were bouncing on their joint account, Mr Feichtinger and Ms McCabe joined together to buy a block of land, their only source of funds being the funds available in their joint account and such funds as Mr Feichtinger might be able to obtain from his customers.  I think that Ms McCabe would have known this, and that, if she did not positively know of their joint position, then she must have shut her mind to it and done so deliberately, because she knew as well as Mr Feichtinger that he and she had no assets available for the payment of the land.  I therefore do not regard this as matter in which it was Mr Feichtinger alone who was to blame for all the events that happened.

I thought that the evidence of Mr Feichtinger was not reliable.  His evidence fell down in a number of respects, including the fact that the allegations made seemed to be extraordinarily surprisingly wild allegations.  They did not seem to me to be probable. 
It is not usual that a person who is going to defraud another will come along and describe his plan of action and afterwards boast about it.  It would have been an extraordinary thing, really, if that had occurred.  That is the basic problem with Mr
Feichtinger's evidence.  Further, when you come to it, his evidence did not accord well with whatever documents there were in evidence, commencing with the written agreement of 29 September 1994.

I am therefore of the opinion that Mr Feichtinger was not a credible witness. 

In the case of Mr Camilleri, on the other hand, I found no particular reason to doubt his evidence.  I had to give, I thought, particular attention to the fact that his evidence did not match happily with the description in the agreement of 9 December 1994, the reference to the $25,800 paid by way of direct deposit into the joint bank account, but I am satisfied that that was a mis-description by someone who is not terribly good at these matters.

As to Ms McCabe, one has to choose between her evidence and that of Mrs Nash, who was Mr Carmody's secretary.  Mrs Nash was a credible witness and there was nothing in her evidence which raised any doubt whatever in my mind.  It was credible evidence and well-presented. 

Ms McCabe, on the other hand, gave evidence of the white paper stapled over the mortgage.  This evidence did not fit the facts when it turned out that three documents had been signed: the mortgage, the duplicate mortgage and then a document which, I think, was called an "Acknowledgment".  When one looks at the duplicate mortgage there are
no staple marks in it.  Ms McCabe then claimed that the sum of $30,000 must have been omitted from the mortgage or she would have read it. 

I thought the general story was improbable and that far too much emphasis was placed upon the son, Kye, and his activity.  I know the stress that children can cause one, but it hardly becomes, one would think, a big matter in an unconscionable conduct case that a woman should have her child with her if she chooses to do so rather than coming alone to sign documents.  It may be noted that not only was there in Ms McCabe's evidence a good deal of emphasis placed upon the child, Kye, but it was repeated in Mr Feichtinger's evidence as part of Mr Camilleri's allegedly announced scheme for putting pressure on Ms McCabe.  I thought that story was not at all credible.

This is not a case such as in McDonald v Esanda Finance where a woman with her own private assets had been called upon by her husband and by the bank to give a guarantee of the husband's indebtedness when both the husband and the bank knew that the husband's business was in trouble.  Indeed, I really cannot see in this case the slightest element of unconscionability.  Ms McCabe's own money was not involved.  The property was bought principally, except as to the deposit, from moneys provided by Mr Feichtinger's customers.  $23,000 of this came from Mr Camilleri.  Indeed, I think it is incredible for it to be suggested, as it was suggested, that Mr Camilleri would lend a further sum of $30,000 on the security of the property into which $23,000 of his own money had already gone.  If Mr Camilleri thought that he ought to have a mortgage to protect himself, this seems in all the circumstances to have been a very proper action considering the fact that obviously Mr Feichtinger at least had financial difficulties.  Ms McCabe also had no means of repaying the moneys except with the assistance of Mr Feichtinger.

Emphasis was also placed by Ms McCabe in her evidence on the difference between what she thought was the sum lent, $20,000, and the sum for which the mortgage was ultimately given, that is to say $30,000.  I am not satisfied as to what was alleged to have been said to Ms McCabe about this matter by her husband.  I do not think I can believe either of them on that topic.  It may further be noted that the difference between the $23,000, which had been already paid, and paid in a way which benefited Ms McCabe, and the sum of $30,000 was very little, especially in view of the fact that, on the day that the agreement for the $30,000 was signed, $14,000 was put into the joint account of Ms McCabe and Mr Feichtinger.  It does not seem to me that there was any gap between the sums as would have troubled anyone's mind at the time. 

So, for those reasons, I reject the evidence of Mr Feichtinger and Ms McCabe.

I am of the view that the conduct of Mr Camilleri was not unconscionable and that he was not involved with any other person in unconscionable conduct.  I further think that Ms McCabe and Mr Feichtinger were both involved in the steps that were taken to obtain money from Mr Camilleri when they had no other means of purchasing the property.  No court, in these circumstances, would set aside the mortgage.

I should mention a defence on which Mr F. Gleeson, counsel for the respondent, relied.  I agree with Mr Gleeson that, had an order been made, it would have been a condition of the order that Ms McCabe make good the sums which have been paid for
her benefit.  I shall not try to work out what that amount might be, but clearly one begins with the sum of $23,000 which was paid directly for her benefit because the property was in her name.

Mr M.F. Galvin, counsel for the applicant, has submitted that unlawful penalties were involved in the two agreements which were drafted by Mr Camilleri.  There were penalties for default which I think no court would have enforced.  But that does not concern us now.  There is no claim for those penalties and Mr Gleeson has accepted the penalty point in relation to them.  The only penalty issue is whether the arrangement as to the payment of $,5000 interest on the $30,000 loan was a penalty. 

I am satisfied that this sum was not a penalty in its nature.  Whatever might have been the result had the contract and the rate of interest been looked at under the Contracts Review Act, equity does not exercise a general jurisdiction to relieve against what are said to be oppressive contracts.  Certainly, no equity is raised where parties equally capable of looking after his, her or its interests agree upon a rate of interest payable on monies outstanding.  It seems to me that everybody in this transaction was equally capable of looking after his or her own interests and agreed upon a rate. 

Mr Camilleri gave evidence that the rate, which might seem high, was adopted because he had to bring a term deposit to an end and lost a good deal of the interest which would have been payable on that term deposit.  I have not, for my own part, sought to work that out or to work out what might have been done if the Contracts Review Act had applied to this matter.  I am satisfied no penalty was involved.
           I have not been asked to say what is the precise amount is now due under the mortgage and I understand that the parties might wish to put points about it. 

There is also a claim for what is said to be the assigned debt of the sum of $14,443.25 in relation to the vehicle.  I do not think I have heard enough evidence to enable me to come to any final view on that.  This is claimed to be a debt due by Mr Feichtinger which he has assigned to Ms McCabe.  I am not satisfied with the proof that Mr Feichtinger gave or that any of the invoices he produced were related to Mr Camilleri's vehicle and I could not, on the evidence before me, find that any particular sum was due.

However, I am satisfied that, because of the purchase of the vehicle and the degree of work done on it up to January, there was sufficient compliance to fulfil the requirements of a claim for work and labour done.  I think that, as Mr Camilleri has taken the car, he is bound to make proper compensation for the value of the work that Mr Feichtinger did.  I do not attempt to work it out.  That value might, in fact, not be all that high because, in the end, somebody else had to complete the work.  As we heard from Mr Robert McBrien of Bee Ems Services, he had to go over a lot of the work already done to check it and see that it was correct.

So, there may not be much value left in the work that Mr Feichtinger did and there may also, of course, be damages for breach of contract because the vehicle was not completed on time.  Time was wasted and expenses incurred.  Moreover, Mr Feightinger had agreed to do the work for a fixed price.  Still, if in the end there is any residual sum that was due to Mr Feichtinger in respect of his work, that sum should be taken into account and he should receive the value of that work.  It will be for others to work out what that value might be and to take into account all the sums paid and the cost of completion of the vehicle and the fixed price.  I will simply reserve liberty to apply in respect of that issue.

With respect to the other assigned debt claimed, it is an assigned debt of $9,014.14 claimed to have been due by Mr Camilleri in respect of work done by Mr Feichtinger on an earlier BMW 325 Alpina owned by Mr Camilleri.  The invoice was first sent to Mr Camilleri by Mr Feichtinger's solicitors in August 1995.  The work was said to have been done at some date early in 1994 or, as I think I recall Mr Feichtinger's evidence, in late 1993.

Something like 18 months passed before any account was sent.  I am not satisfied that there was any sum owing.  It seems to me to be extraordinary that there would have been a sum owing and not taking it into account in all the arrangements that were made respecting the subject vehicle.  There being three written agreements between the parties, one would have expected this item, which is not insignificant, to have been taken into account if in fact any sum was owing.  I am not satisfied, from Mr Feichtinger's records, that any such sum was due.  Accordingly, I am not satisfied that there is any substance in what is alleged to be the debt assigned to Ms McCabe. 

I will reserve to the parties liberty to apply with respect to the value of the work done by Mr Feichtinger on the subject vehicle, but will otherwise dismiss the application.  I think I should make the usual order as to costs.  The applicant will pay the respondent's costs of the proceedings.

I certify that this and the 21 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.

Associate:

Date:  18 June 1996

Counsel for the applicant:  M.F. Galvin

Solicitors for the applicant:  T.H. Walker & Co.

Counsel for the respondent:  F. Gleeson

Solicitors for the respondent:  John Carmody & Co.

Date of hearing:  18 June 1996

Date of judgment:  18 June 1996