Qureshi v Commonwealth Bank of Australia - [2009] NSWCA 421

No judgment structure available for this case.

New South Wales

Court of Appeal

CITATION: Qureshi v Commonwealth Bank of Australia [2009] NSWCA 421

HEARING DATE(S): 27 May 2009 and on the papers

JUDGMENT DATE:
22 December 2009

JUDGMENT OF: Beazley JA at [1]; Macfarlan JA at [2]; Young JA at [3]

DECISION: Appeal dismissed with costs.

CATCHWORDS: BANKRUPTCY- appellant, who had been sued by bank, is made bankrupt after Court of Appeal reserves decision- consequences. RESTITUTION- recovery of moneys advanced by mistake- funds received by the appellant out of funds advanced to the fraudsters for accountancy fees- whether bank could recover them. TRADE PRACTICES- misleading and deceptive conduct- negligent conduct- fraud against bank- moneys advanced by bank to company under receivables finance facility- accountant's reports provided to bank- bank induced to lend because of various documents provided by the appellant, an accountant, relating to the finances of the company- appellant's responsibility for documents- bank's reliance on those documents- accountant liable to bank.

LEGISLATION CITED: Bankruptcy Act 1966 (Cth), ss 58, 60

CATEGORY: Principal judgment

CASES CITED: Fox v Percy [2003] HCA 22; 214 CLR 118
Milner v Delita Pty Ltd (1985) 61 ALR 557

PARTIES: Zia Ul-Islam Qureshi (Appellant)
Commonwealth Bank of Australia (Respondent)

FILE NUMBER(S): CA 40015/08

COUNSEL: Appellant in person
A A Henskens and A R Zahra (Respondent)

SOLICITORS: Appellant in person
Henry Davis York, Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 50149/05

LOWER COURT JUDICIAL OFFICER: Einstein J

LOWER COURT DATE OF DECISION: 28 August 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Commonwealth Bank of Australia v Mohamad Saleh & Ors [2007] NSWSC 903

CA 40015/08

BEAZLEY JA
MACFARLAN JA
YOUNG JA

Tuesday 22 December 2009

QURESHI V COMMONWEALTH BANK OF AUSTRALIA

Judgment

1 BEAZLEY JA: I agree with Young JA.

2 MACFARLAN JA: I agree with Young JA.

3 YOUNG JA: This is an appeal from a decision of Einstein J who found the present appellant liable to repay the respondent $150,914.38 (which included interest of $25,914.38) as well as ordering him to pay to the respondent general damages of $3,082,046.02, exemplary damages of $150,000 and indemnity costs.

4 The case occupied 19 hearing days at first instance. The major fraudsters had by that stage fled the country. The only defendants appearing before the primary judge were the present appellant (who was the third defendant) and a Mr Edge (the tenth defendant).

5 The learned judge made orders against all the defendants. The orders against the present appellant are often joint orders against others. However, this has little significance as most of the others are unlikely to contribute to any judgment.

6 The brief underlying facts, as found by the primary judge and which are not in dispute, are that the respondent (the “Bank”) brought proceedings to recover moneys advanced by it in reliance on conduct alleged to have been misleading and deceptive, negligent and fraudulent and to recover damages. It sought relief against persons and entities alleged to have engaged in such conduct and also against persons said to have received, as volunteers, moneys advanced by the Bank. The Bank also claims pursuant to a contractual guarantee.

7 In about mid-May 2005, an application was made to the Bank for a receivables finance facility referable to the receivables of TDM Australia Pty Ltd (“TDM”). TDM was a company which appears to have operated as a wholesaler of electrical light switches, power points and other related products. It was a company with which the major actors for the purposes of the proceedings, Mr Mohamad Saleh (the first defendant), Mr Hassanien Saleh (the fifth defendant), Mr William Edge and the present appellant, Mr Zia Ul-Islam Qureshi, had been associated.

8 The two Messrs Saleh are brothers. Mr Mohamad Saleh was a joint director and company secretary of TDM from 18 October 2002 to 15 March 2004 and was involved in the business and operations of the company until some time after 3 June 2005. Mr Hassanien Saleh was a joint director of TDM from 18 October 2002 to 15 March 2004, was the sole director of TDM from 15 March 2004 to 11 April 2005 and was involved in the business and operations of the company until some time after 3 June 2005.

9 Mr Edge was appointed the sole director of TDM on 11 April 2005 and was involved in the business and operations of the company from some time in 2005 until some time after 3 June 2005.

10 The judge held that the evidence before him established that Mr Qureshi (and his company, Qureshi & Associates Pty Ltd (the eleventh defendant) – now in liquidation) prepared various financial statements relating to TDM, prepared schedules detailing the receivables of TDM and wrote letters certifying key facts concerning the operations, receivables and tax position of TDM. Qureshi & Associates Pty Ltd traded under the name Mascot Taxation & Accounting Services.

11 The Bank’s essential case was that it was duped by an elaborate fraud constituted by the provision to it of fabricated financial statements provided in support of the claim that TDM was a substantial company in the order of $20 million in sales per year, requiring the receivables finance facility for a purpose which was itself a tissue of lies. Part and parcel of the fraud, which the trial judge found was perpetrated, involved oral and documentary representations by a variety of actors generally made to provide adjectival support for the false propositions that TDM was a substantial company with the above described sales and that TDM required the receivables finance facility for a purpose shown to have been false.

12 Justice Einstein found that those many misrepresentations went to the Bank's prudential decision to grant the facility and to its security position.

13 Justice Einstein referred to some of the indicators of the alleged fraud at [9]:

“(i) Mr Mohamad Saleh, Mr Hassanien Saleh and Mr Edge absconded shortly after the $7 million was paid. Although Mr Edge has returned, Mr Mohamad Saleh and Mr Hassanien Saleh apparently remain in Lebanon;

(ii) the very swift dispersal amongst many Saleh family members after the $7 million was paid, of hundreds of thousands of dollars;

(iii) the close down of TDM's office and storage facility buildings which took place virtually immediately upon payment of the $7 million;

(iv) the fact that Mr Mohamad Saleh and Mr Edge sought to avoid any discovery of the fraud until after the funds had been disbursed and jointly advanced a fictitious story that Mr Edge had travelled to China to avoid early detection by the Bank of the imaginary and exaggerated debtors;

14 The Bank’s case involved claims for proprietary remedies against those who received various parcels of the funds that derived from the Bank. This appeal does not involve those issues.

15 The Bank’s claims against the appellant were principally for damages for misleading and deceptive conduct or for negligence as well as an order for the repayment of $125,000 received by him from the funds advanced by the Bank, which the appellant says was received by him for accountancy fees and not otherwise.

16 The essential facts that are not in dispute are that, on 3 June 2005, the Bank advanced $7,000,000. This sum went into an account of Mohamad Saleh with the ANZ Bank. That sum was paid out almost immediately, and of those funds $125,000 found its way to the appellant.

17 The Bank made the loan because it was induced by false documents to believe that the TDM company was a thriving entity making sales turning over $20,000,000 per year. In fact, its only officers were the Saleh brothers and a couple of others and the company had no business of anything like this magnitude.

18 The case lasted a long time before the primary judge principally because it seems the Bank considered that the allegations it was making against the various defendants were so serious that strict proof needed to be supplied.

19 As a consequence, as the primary judge remarked, almost every conversation, meeting, e-mail and document of relevance to the application for the facility was placed before the Court.

20 However, his Honour said at [43], “notwithstanding the plethora of evidence of this type, the Bank's case in essence [was] a simple one”.

21 The primary judge noted at [43] that the Bank claimed that it was defrauded into granting the finance facility by numerous outright lies as to:

(ii) TDM being a reliable and reputable supplier;

(iii) TDM's financial accounts having been independently verified by an external accountant at particular points in time;

(iv) details of particular contractual arrangements between TDM and Carella Electrical Distribution and the prospects of those arrangements generating additional sales for TDM;

(v) Mr Edge having entered into a genuine arms length contract to purchase TDM for $17,000,000;

(vi) TDM being a company of such substance that it could command a purchase price of $17,000,000;

(vii) the $7,000,000 requested to be borrowed to be paid to the vendor to complete his purchase of TDM;

(viii) Mr Edge having paid a deposit of $10,000,000 in connection with a genuine arms length purchase by him of TDM;
(ix) TDM having fulfilled all of the terms and conditions of each sale to each of the debtors identified in the attachment to the Offer Statement.”

22 The primary judge found that all these allegations had been made out: (para [43]).

23 As against the present appellant the claim was in two parts: (a) to recover the $125,000 paid to him (plus interest); and (b) to recover damages for misleading and deceptive conduct and/or negligence.

24 As to (a), Mr Qureshi never denied receiving the $125,000. He claimed that that sum was received by him for accountancy fees and received without any knowledge of misfeasance and had been expended by him in the normal course of his practice. The judge did not accept this for reasons that will be noted later in these reasons.

25 The basal allegations as to part (b) of the claim cannot be so simply stated. I will endeavour to state them as concisely as possible shortly.

26 The appellant conducted his own case in person before the primary judge.

27 The judge said at [222] that Mr Qureshi “is a very intelligent and well-qualified person [as indeed was conceded by Mr Qureshi]. He had obtained a Master of Commerce degree from the University of New South Wales and a Master of Applied Finance from Macquarie University.”

28 The appellant’s basic assertion was that he was as much a dupe of the Saleh brothers and Mr Edge as anyone else.

29 The appellant further put forward the hypothesis that Mohamad Saleh, in particular, was responsible for fabricated documents and for achieving total access to Mr Qureshi’s computer without Mr Qureshi’s knowledge or consent.

30 Mr Qureshi cross-examined the Bank’s witnesses. Questions put to these witnesses often included whether or not the Bank’s witness had ever seen him or had ever spoken to him prior to 3 June 2005 or had received any communication [addressed specifically to them] from him at, or prior to, that date. On many occasions, he also enquired of particular witnesses as to why they had not sought to contact him directly when issues arose in relation to which his own involvement were relevant.

31 At this point, I need to note some of the primary judge’s statements about Mr Qureshi and how the appellant put his case at first instance.

32 The judge summarised Mr Qureshi’s evidence before him as follows (para [224]):

“i. he is an accountant in public practice;

ii. in late 2003 the directors of TDM requested his firm’s assistance in the preparation of accounting and financial information for that company;

iii. at all material times Mr Qureshi spoke to Hassanien Saleh and his associate/manager, Mohamad Saleh;

iv. during the initial meeting, books and records of TDM were forwarded to Mr Qureshi for comment and perusal. These included the 2002 financial statements for TDM which had been prepared by its previous accountant;

v. at the meeting and after an initial view of the documents, Mr Qureshi advised Hassanien Saleh and Mohamad Saleh of his company's schedule of fees and later visited TDM's warehouse, being impressed with the facilities, the volume of stock and the company's product catalogue;

vi. his impression was that TDM was a business growing at an extraordinary pace. He was told that this was due to the fact that the company had contracts with Chinese manufacturers and exporters who were prepared to provide them stock very cheaply and at a quality which was acceptable under Australian standards;

vii. during the period between February 2003 and June 2005 Mr Qureshi, as well as his staff, provided accounting, taxation and business services to TDM. On around 31 March 2004 he advised the directors of the company that as their records showed their business was growing at an extraordinary pace, they would require a service company for effective tax planning. Mohamad Saleh on behalf of the company asked him to provide an estimate of his annual fees for his services and asked him to become a director of the new company, to which he consented. Hence a company known as “The Whitemore Group Pty Ltd” was incorporated and he was appointed a director with an agreement as to fees for the management of that company. For a number of reasons, mostly related to the non-payment of his day-to-day accounts, he did not effect a tax plan as envisaged and his services were terminated on 7 June 2005;

viii. as his accounts remained unpaid by May 2005 he advised both Mohamad and Hassanien Saleh of his concern and did so on 4 May 2005 requesting payment of his outstanding fees, which by then totalled $80,450;

[Under cross-examination Mr Qureshi gave evidence that he had never been told until after 3 June 2005 that Mr Edge was the purchaser of TDM's business. He had learned this from either Mr Edge or Mohamad Saleh after 3 June, although he was not sure of the exact date.]

x. he continued to prepare financial records and statements for the company based on the information which the brothers provided to him;

xi. during May 2005 through until 3 June 2005, he prepared further financial records based on information provided to him. The information provided to him by the brothers included bank statements, receipts, debtors list, creditors, stock valuations and patent valuations. At the time, all of the records provided to him seemed to be authentic and he did not dispute them;

xii. in his opinion at that time the company seemed to be successful and based on the stock levels which he had personally seen at the company's warehouse, he did not doubt the authenticity of the information provided to him;

xiii. by 3 June 2005 he had completed the work for TDM;

xiv. on 3 June 2005 he advised the directors of the company that before he released any documents to them, he wanted payment for his services, and that he wanted the payment in the form of cleared funds;

xv. on 7 June 2005 he received a telephone call from Mohamad Saleh who said that he would deposit $125,000 into Mr Qureshi's account in cleared funds. Mr Qureshi responded by asking if the funds could be placed into his National Australia Bank cheque account. Mohamad Saleh said that he wanted to do it by electronic transfer which was easier and safer. He asked Mr Qureshi if he could provide an ANZ bank account to make it easy for a transfer of the funds. Mr Qureshi said that he could provide an ANZ personal account if that was okay. Mohamad Saleh said that this would be no problem;

xvi. later on that same day Mr Qureshi went to his branch of the ANZ to find that the funds were there. When he returned to his office, the brothers were waiting for him. Mohamad Saleh said that they had sold the business and that he had been paid and that they wanted their records returned to them. Accordingly Mr Qureshi returned all documentation relating to TDM to the brothers;

xvii. Mr Qureshi recalled feeling as if he had offended the brothers and that he had lost their ongoing business relationship;

xviii. he had not had any time faxed, sent or had delivered, any documents to the Commonwealth Bank, Mr Petts or Mr Budai. He did not agree to fax three months of bank statements to the Bank and did not do so: cf Exhibit OB6 p48 to the affidavit of Mr Budai of 3 August 2005;

xix. he drew attention to the encoding at the top of the bank statements where the words "Mascot Taxation N Acc" appears. His only encoding on all documents faxed from his office [on his evidence] showed "Mascot Taxation" or "Mascot Taxation & Accounting Services". His evidence was that the encoding shown on the sheets was not his and was not produced by his facsimile machine. He made the point that the receiving phone facsimile number shown at the top of the bank statements was that for TDM and not for the Bank;

xx. he observed that neither Mr Budai's or the Bank's fax number (02) 9891 9183 appeared at all on any of the faxed records for Qureshi & Associates Pty Ltd. Further upon closer examination of Exhibit OB1 to the affidavit of Mr Budai, Mr Qureshi observed that the TDM financial reports had a fax number and company name encoded on the top of each page of the report reading "13-May 2005 11 AM GE Commercial Finance". His evidence was that this encoding represented the time and place the documents were forwarded to Mr Budai and that as such, Mr Qureshi had not faxed those documents from his office to Mr Budai at all;

xxi. his evidence was that this was the case with all of the documents prepared by him for the directors of TDM. His evidence was that it had been his practice to address and forward all documentation relating to TDM and its operations directly to the directors of the company for their perusal and comment only, and not for the use or reliance of third parties. He had always attached a disclaimer to any financial reports which he forwarded to clients. That disclaimer had warned third parties that should they, without his express authority or knowledge, wish to rely on his documents, then they would be doing that at their own risk. He observed that much of what was produced in documents was in draft form and unaudited and that the disclaimer applied equally so in such cases. He observed that his typical disclaimer was attached to the accounts of TDM;

xxii. Mr Qureshi denied that there was anything unusual in the fact that his office would be closed from 1:15 p.m. to 2:30 p.m. each Friday. That was his regular practice and on 24 June 2005 he had been in the city at a business meeting;

xxiii. his evidence was that Qureshi & Associates had only received $125,000 for its services and that there was a small amount which remained outstanding. He knew this to be so as it was his own duty to maintain and deposit all bankings;

xxiv. with reference to an email sent at 8.07am on 3 June 2005 by Mr Budai to Mr Placek and copied to Mr Saia [in which Mr Budai had observed that during his discussions with the clients and the accountant on the previous evening, he thought that they had worked out what the discrepancy was in the accounts], Mr Qureshi gave evidence that he had not met nor spoken to Mr Budai or the directors of TDM on the night of 2 June 2005 and he denied that he had worked out the reason for any discrepancy in any accounts on that day or evening;

xxv. his evidence was that during the course of his involvement as the accountant for TDM he had not spoken to Mr Petts, Mr Budai or any other bank officer in relation to the affairs of that company;

xxvi. with reference to the schedules shown in Exhibit OB16 to the affidavit of Mr Budai [being the materials which Mr Budai had received in a facsimile from Mohamad Saleh dated 19 May 2005], the evidence given by Mr Qureshi was that he did not prepare those schedules. He made the point that the document bore the letterhead of TDM and was signed by "Mo";

xxvii. with reference to the evidence given by Mr Budai that on about 20 May 2005 he received a facsimile from Mascot Taxation and Accounting Services addressed to TDM providing further information with regard to the finances of TDM, Mr Qureshi gave evidence that he had not faxed any letter to the Bank regarding the debtors of TDM. His evidence was that from the business records at his disposal, the facsimile number on the letterhead for the Bank did not appear on those records;

xxviii. with reference to the evidence given by Mr Budai of the lengthy telephone conversation he had with Mr Edge on 23 May 2005 [in the course of which Mr Edge had told him that all bank statements were held by the external accountant], Mr Qureshi denied that he had retained TDM's bank statements in his office. His evidence was that all records had been handed to the two brothers on 7 June 2005, being the day that his appointment was terminated. His evidence was that the bank statements referred to in the conversation between Mr Edge and Mr Budai were returned to the directors of TDM when they collected their accounts in early May 2005;

xxix. the circumstances in which Mr Budai received a facsimile from TDM on 25 May 2005 which attached TDM’s purported bank statements for February, March and April 2005 have already been referred to in these reasons;

xxx. his evidence was that at no time did he receive any request from the Bank, Mr Budai or Mr Petts requesting any information in support of TDM's loan application;

Mr Qureshi’s further evidence in relation to the bank statements was that on closer examination, the receiving telephone facsimile number shown at the top of the bank statements was that for TDM and not for the Bank. In other words he observed that those documents at first instance were sent to TDM;

xxxii. where Mr Budai had said in an email addressed to Mr Placek that he had held discussions with the clients and the accountant on the evening of 2 June 2005, Mr Budai corrected himself during his cross-examination by clarifying that he did not speak directly with Mr Qureshi that evening [as referred to earlier in these reasons];

xxxiii. Mr Qureshi denied that he had ever maintained the general ledger for TDM, his firm having only been appointed to prepare the 2004 and interim 2005 accounts for TDM from information supplied to it by the directors of TDM. At no time had he prepared a trading analysis for TDM;

xxxiv. insofar as his firm's letter of 3 June 2005 [PX 1349-1350] was concerned, it only referred to the mathematical accuracy of TDM's debtors’ ledger and he observed that the letter was addressed to the directors of TDM and not to the Bank or to any officer of it;

xxxv. At no time prior to settlement had any member of the Bank actually contacted any of TDM's debtors to confirm their indebtedness to it, in respect of which that this was unheard of in his accounting experience;

xxxvi. At no time up to settlement of the loan on 3 June 2005 had any member of the Bank contacted him to confirm what the Bank had apparently been informed by the two brothers, was the explanation for the discrepancy in the figures for July and October 2004 [cf Mr Placek’s affidavit of 14 June 2006 at [40]];

(a) the suggestion that he had a prepared or maintained the general ledger for TDM;

33 His Honour remarked at [222] that “when there is absolutely no doubt but that the Bank has been the subject of a carefully planned fraud in which Mohamad and Hassanien Saleh appear to have been the principal wrongdoers, it must be recognised that even a person as intelligent as Mr Qureshi may also have been duped … [that he has] engaged in highly suspicious conduct since the event, … has not made the task of the Court [to determine Mr Qureshi’s participation in the fraud] any easier by so doing”.

34 It is necessary, before dealing with the issues raised on this appeal, to give a brief statement of the core evidentiary material before the primary judge which was accepted by him. The most convenient method of doing this is to set out the evidence of Mr Budai, a senior executive of the Bank, which was accepted by the judge.

35 Mr Budai said that the initial approach for the receivables facility was made by TDM to a Mr Petts who at that time was a director of a commercial lender, G E Commercial Finance (“GE”).

36 Mr Petts’ evidence was that GE was not able to assist TDM for practical reasons and, with the Messrs Saleh’s consent, passed the application and information about it that he had gathered on to Mr Budai of the Bank.

37 As set out in the primary judge’s judgment at [51]:

“Mr Budai was the principal relationship executive at CBA who dealt with Messrs Mohamad Saleh, Hassanien Saleh, Edge and Petts. He received the bulk of the information provided to CBA in support of the finance application and prepared a credit submission in support of the application. He attended key meetings at the premises of TDM where representations relied upon by the Bank were made.”

38 At [59] and following his Honour continues:

“Mr Budai met Mr Petts on 12 May 2005. The purpose of the meeting was to discuss the possible provision of finance by the Bank to complete a purchase of TDM. During the course of the meeting words to the following effect were said:

‘Mr Petts: I have a transaction which you may be interested in which we can’t do. The borrower needs the transaction to be done in under six weeks and we are not able to do that. I have spent a lot of time on it but GE will not process it in time. The vendor is also pushing for a quick settlement and the purchaser has said he may go to ANZ. You only have a short window to approve the deal. …

William Edge (Mr Edge) is purchasing shares in a company called TDM Australia Pty Ltd (TDM). $11,000,000 has already been paid as a deposit. The purchase price is $18,000,000 and they require a $7,000,000 loan. There is no real property security. It will have to be secured by way of a charge over the company or a receivables facility. TDM has a broad customer base that would suit a receivables product. The customers are electrical contractors or builders and retail stores. …

The company sells electrical products to electricians, builders and electrical wholesalers. They import their product from China. I have been out to the warehouse and seen the operations. The products are quite impressive.

Mr Budai: I would be interested in having a look at it.

Mr Petts: I have some documents in relation to the company including a printout of the aged debtors list that I will fax through to you.’

In reviewing the above facsimile Mr Budai was interested in TDM's turnover, profit, equity and receivables. He was aware that the Bank's receivables finance area would provide finance to a customer to an amount up to 80 per cent of its approved receivables. He was therefore interested to see the value of TDM's receivables, whether there was a positive growth in the value of its receivables over the years, how concentrated its customer base was and the age of the debtors. Based on his review of the documents, [Mr Budai] thought that the financial position looked good. He also noted that the receivables were spread out amongst several debtors of TDM and that TDM was being paid within a relatively short period of time - there were no aged receivables outstanding more than 90 days.”

39 Other officers of the Bank then reviewed the data on the application and approved the general thrust of the proposal. In doing so, they also relied upon the financial statements for the year ended 30 June 2004 and the financial statements for the nine months ended 31 March 2005.

40 Mr Placek, who was a risk executive working in the Franchising and Factoring Division of the Bank, was the person responsible for approving “Stage 2” of the receivables finance application.

41 As summarised by his Honour at [63] and following:

“On Friday 13 May 2005 Mr Budai discussed the contents of the above-described materials with Ms Sue Kenny, who held the position of Risk Executive in the Bank and to whom Mr Budai [reported]. Ms Kenny's role in the Bank was that of analysing potential transactions with regard to credit risk to the Bank.”

42 In the ensuing week, Mr Budai collected further material, including a facsimile from Mr Edge which contained a personal statement of assets and liabilities and also his tax return for 2004, and sought to arrange a meeting with Mr Edge.

43 On 17 May 2005, Mr Budai sent an email to Mohamad Saleh asking if he could provide the Bank with the information referred to in his email to Mohamad Saleh of 13 May 2005. On the same day, Mr Budai received a facsimile from Mr Petts attaching the information which he had requested.

44 As his Honour said at [74] and following:

“On Wednesday 18 May 2005 Mr Budai attended TDM's premises at Wollongong Road, Arncliffe, with Mr Morris [sales manager working in the receivables section of the Bank]. They met Mr Petts and were introduced to … Mohamad Saleh who was identified to Mr Budai by Mr Petts as the then-current owner of TDM and Mr Edge who was identified as the prospective purchaser of TDM.

TDM's premises were in an industrial complex. The entry into TDM's premises was via a roller shutter door or a side door. Inside the premises, three of the four walls of the warehouse had shelving and there were two levels of pallets on the shelves. In the centre of the warehouse, there were approximately 24 pallets on the floor. The pallets were stacked with sealed boxes. The warehouse was neat and tidy.”

45 His Honour continued at [80]:

“Mr Edge told Mr Budai that he had been working at TDM for several months and described its products as better quality, more extensively tested, offering a longer guarantee and more competitively priced [since they sourced their products from China] than any of their competitors. Mr Edge told him about his electrical engineering background and that he liked the TDM products so much that he bought the company.”

46 Mr Budai asked what the purpose of the loan application was. Mr Edge replied that he had signed a contract to purchase shares in the company and needed a loan to complete the transaction. He said that he had agreed to pay $17,000,000 and had paid a deposit of $10,000,000. Thus, he required $7,000,000.

47 During the meeting, Mr Morris asked whether the debtor figures were correct and was told that they were: they had been taken straight from the computer. Mr Morris said that they didn’t add up so there must be an error. Mr M Saleh said that he would check them and get back to Mr Morris.

48 The Bank continued to be concerned about the figures for debtors and in an endeavour to allay those concerns, on 20 May 2005, Mr Petts forwarded to the Bank a fax that had been received from Mascot Taxation and Accounting Services (Mr Qureshi’s firm) addressed to TDM which provided additional financial information.

49 On 1 June 2005, the Bank received what appeared to be 12 months of bank statements for TDM by facsimile from TDM, (who, in turn, had originally received them from Mascot Taxation) for the period May 2004 to May 2005.

50 However, the evidence accepted by the primary judge clearly showed that the copies of St George bank statements said to be the TDM statements for the period May 2004 to May 2005 were not in fact genuine bank statements: see para [130].

51 Another senior officer of the Bank, Ms Lenore Smith, a business analyst, was:

“assigned to conduct a field visit of the TDM premises on 2 June 2005, where she met with Mohamad Saleh and Mr Petts. Among her key findings on the field visit and resulting Field Report [that she submitted to Mr Placek] was that she was unable to explain the differences for the October and July 2004 figures (‘the July and October 2004 discrepancies’) and also that there was a difference of $1.4 million in the reconciliation of the deposits (payments from debtors) for the month of April 2005.

Mr Placek reviewed Ms Smith’s Field Report and other documents provided to CBA in support of the application.”

(Primary judgment at [132]-[133])

52 At the trial, Mr Placek was cross-examined by Mr Qureshi as to why he did not contact Mr Qureshi, as TDM’s external accountant, in relation to the discovery of the discrepancies in figures provided to the Bank. The primary judge refers to this part of the evidence at [134]:

“Mr Placek stated that his role was not to reinvestigate the proposal with the original sources but to act on the information supplied to him. If he had any problems, he would refer it to the people who passed the information onto him and ask them to provide the further information since he did not deal with clients directly [T511:42]. Mr Placek did not find it unusual that no one in his section contacted Mr Qureshi [about the apparent discrepancies] because in his experience discrepancies did occur from time to time.”

53 However, because of the discrepancies, it seemed that the transaction would not go ahead. Mr Budai telephoned Mohamad Saleh and arranged a meeting for 3 June 2005 at TDM's premises.

54 Later in the evening of 2 June 2005, Mr Budai received a telephone call from Mohamad Saleh who said that he had spoken to the accountant and thought that the parties could sort out the difference at the proposed meeting the next day. He said that the discrepancy was probably due to the accountant not having an opportunity to reconcile something before he sent in the submission and that the receivables ledger from MYOB was 100% correct.

55 His Honour sets out the events of the meeting of 3 June 2005 at TDM’s premises at [141] and following:

“During the morning of 3 June 2005, Mr Budai drove to the premises of TDM with Mr Placek and Mr Gary Cook of the Bank …. At the premises they met Mohamad Saleh and Mr Petts … . [After a brief inspection, the discussion began]. Mohamad Saleh put a letter from Mascott [sic] Taxation and Accounting Services on the table and Mr Placek took the letter. Mr Budai did not read the letter.”

56 The text of the letter is as follows:

“TDM Australia

Unit 11/13-15 Wollongong Road

Arncliffe NSW 2205

Dear Director,

· All Accounting functions from journal entries to final accounts.

· All debtors and creditors.

· Finance matters, i.e. payments overseas, foreign exchange management, cash flow etc.

· General administration.

We envisage that the person appointed will not only take full control of the above functions, but also install and implement a full accounting package that will be able to handle to needs of an expanding company like TDM.

Hence financial reports will be available whenever required by the new owner and/or management.

In terms of the difference between the July and October debtors, I confirm that the details in TDM’s debtors’ ledger are correct.

However, since the accounts that were prepared by our firm were interim accounts and not final accounts, we will reconcile the year end accounts with your ledger details to ensure that the accounts for the 2005 financial year properly reflect the details in TDM ledgers.

We would like to sincerely apologise to TDM for any inconvenience caused by this error on our part.

Thanking you

57 As the primary judge said at [142]:

“In short, the letter gave an explanation for the July and October 2004 discrepancies, and with respect to the $1.4 million April reconciliation discrepancy, he was told by Mohamad [and/or Mr Edge] that it was an amount received from Mr Edge.”

58 The letter was particularly significanct in the resolution of this case at first instance, a matter to which I will return.

59 At [142] Justice Einstein continued:

“Mohamad [Saleh]’s explanation and Mr Qureshi’s letter gave Mr Placek comfort particularly since Mr Qureshi provided ‘independent corroboration’ as TDM’s external accountant.”

60 Mr Placek asked to have a look at TDM’s MYOB system to see how it inputted payments.

61 The primary judge outlined the events at [144]:

“Mr Placek and Mohamad Saleh conversed at the computer while Messrs Cook, Petts and Budai stood away from them in the office. Mr Budai did not hear the conversation between Mohamad Saleh and Mr Placek at that time. Mr Placek and Mohamad Saleh spent approximately 10-15 minutes at the computer.”

62 The loan was made later the same day by bank cheque which was made payable to Mohamad Saleh in accordance with Mr Edge's direction as to payment.

63 By 7 June 2005, events had occurred which raised the Bank’s suspicions as to the transaction. On 24 June 2005, it appointed Mr Parbery, a registered liquidator, as receiver and manager of TDM. Mr Parbery then investigated the affairs of TDM and provided valuable evidence which the primary judge accepted.

64 The judge did not accept Mr Qureshi’s evidence, for a number of reasons, but principally because of the evidence of Mr Wills, a forensic computer expert called by the Bank, and the evidence given before White J in an interlocutory stage of this case.

65 As set out by the primary judge at [225]:

“Mr Wills recovered from the deep memory of Mr Qureshi’s computer which he examined, the documents which he annexed to his 4 affidavits in the proceedings. The computer which Mr Wills examined was a server with an NT operating system. The metadata recovered gave information on when files were created, modified and last accessed. If a document was deleted then its last accessed date [indicated by the metadata] was the date that it was deleted. No evidence challenging Mr Wills’ methodology was called on behalf of Mr Qureshi.”

66 At [226] the judge summarised the evidence given by Mr Wills as follows:

“i. None of the documents recovered from the computer included any of the documents which Mr Qureshi is known to have created in 2005 relating to the TDM matter.

ii. There were no financial statements and letters to TDM (which were sent to the Bank in hard copy). There was no soft copy of his invoices relied upon to justify the $125,000 payment which he received. There was no soft copy of his timesheet.

iii. At page 24 of Mr Wills’ 13 July 2007 affidavit he sets out an historical view of the documents created, modified and last accessed on the computer which was made available for examination. The graph shows virtually no documents created after 2004. Further, a large number of documents were last accessed in 2004. In Mr Wills’ 30 July 2007 affidavit at [7], he explains that a large number of files, 9255 files, were deleted between 14 and 21 October 2004.

iv. By reference to the meta data the documents deleted between 14 and 21 October 2004 included documents at:

a) pages 28, 46, 48-49, 51–69, 71-89, 91, 93 and 95 of Mr Wills’ 13 July 2007 affidavit;

b) pages 11, 13, 15, 17–26, 28–30, 48 and 53 of Mr Wills’ 26 July 2007 affidavit; and

c) all of the documents annexed to Mr Wills’ 30 July 2007 affidavit.

v. Many of the documents were created in the “Zia” Users folder which Mr Qureshi identified to be his own. These include:

a) pages 28, 46, 48-49, 51-69, 71–89, 91, 93, 95, of Mr Wills’ 13 July 2007 affidavit;

b) pages 11, 13, 15, 17 – 26, 28 -30, 48, 50 -51 ad 53 of Mr Wills’ 26 July 2007 affidavit.”

67 At [227] the judge said that “in assessing the reliability of the evidence given by Mr Qureshi and in determining whether or not he knowingly participated in the fraud practised upon the Bank” he took the following matters into account:

“i. His curious behaviour which occurred in relation to the $125,000 which he received by inter-bank transfer by arrangement with Mohamad Saleh soon after the 3 May 2005 setttlement:

[notwithstanding that his practice already had accounts with the National Australia Bank and that he already had one personal account with the ANZ bank, he determined to open a further personal account with the ANZ bank – his explanation was that he was having marital difficulties at the time, by which he is presumably indicating that he wished to keep secret these funds from his wife].

[Likewise his evidence as to what he did with the moneys in the following weeks repays close attention: if the moneys were provided to him as legitimate professional fees, then of course he was perfectly entitled to do whatever he wished with the moneys. However they were certainly not paid into his office account and were utilised for the purpose of taking his family on a Hajj and for other purposes closely detailed in the reasons which follow.]

ii. His having informed Mr Ayres of the receiver's office in a conversation in late June 2005 that TDM owed him money [it being the case that only a small amount may have still been owed to him following his receipt just a few weeks earlier from TDM of $125,000]. [I note that the finding is that his evidence is not accepted where he contended that there were moneys still owing to him for work which he had done in relation to consulting with the Whitemore Group.] He conceded that he never presented any accounts, time sheets or other records to suggest that he was owed any other money. Very importantly he did not inform Mr Ayres that he had received the $125,000 just a few weeks earlier;

a) by letter dated 24 June 2005 from the receiver and manager, Mr Qureshi's firm had been formally notified of the receivership, notified that the receiver understood that the books and records of TDM were still in his office and notified that pursuant to s 431 of the Corporations Act , the firm was requested to provide Mr Ayres with the books and records of the company held by it for his inspection and that Mr Ayres would remove those records;

b) on no occasion did Mr Qureshi ever voluntarily produce any soft copy TDM documents from his computer from 27 June 2005 until ordered by the Court to do so.

[Indeed the whole sorry story in relation to Mr Qureshi failing to answer a Notice to Produce, unsuccessfully appealing from the Court orders to permit his computer to be imaged by an expert retained by the Bank, and only during the final hearing stating that a laptop had been lost overseas, may be thought to provide a reason for the very highest suspicion as to Mr Qureshi having been effectively in ‘cover-up’ mode.] [Mr Qureshi's contention that he was generally flustered at the time he was first approached by the receivers may be accepted, but cannot possibly explain why it is that years and years went by without his having produced the soft copy TDM documents from his computer which were ultimately only forced out of him by Court order.]

iv. his explanation, which is rejected as unreliable, that particular documents were to his belief, produced by Mohamad Saleh, who had access to his office in order to run his own accountancy consultancy;

v. the problems with his credit: as for example his having given evidence under cross-examination that after February 2003 when he first met Mr Faowzi Saleh he had perhaps seen him again on one or two occasions and had never met Khadige Saleh [the mother of Mohamad and Hassanien Saleh]: it then eventuating that in about May of 2004, Mr Qureshi had signed an identification record for a signatory to an account being a document [that would be used for the purposes of the Financial Transactions Reports Act ] certifying that he had known Faowzi Saleh as well as Mrs Khadige Saleh for four years;

68 The primary judge continued at [228]:

‘About two years. TDM owes me money. I am not sure of the amount until I look into my records’;

ii. he said nothing about having received the payment of $125,000 just a few weeks prior to that occasion as payment of his outstanding fees for a number of years;

a) the withdrawal of $55,168 on 10 June 2005 was to the best of his recollection made in cash;

b) half of the $55,168 was spent on personal expenses although he could not be certain about that matter;

c) the money used for personal expenses were spent on an overseas trip at the end of December 2005 with his family and for household expenses;

[The overseas trip would have cost between $30,000 and $35,000. It was a trip he went on with his wife and four children. He booked accommodation for when he went to the Hajj.]

d) he gave most of the $55,168 which he withdrew on 10 June 2005 to his wife, on the same day or the day after;

e) he gave $15,000 to Chartec Accounting and Consulting Services in payment for services to his firm;

f) he paid $5,000 to Media Press Computer Suppliers, a company which had been retained by Qureshi and Associates;

g) during the period of time that he had the cash, he kept it with him. He kept it at home or kept it in the office. If he kept it in the office, it could have been kept in his top drawer "or wherever was convenient" to him. In respect of the money kept at home, he said that he "would have given it to [his] wife to hold on to it". He gave it to his wife because they were planning to go overseas at the end of the year and that he had given her cash before, but not in a magnitude of $30,000-$40,000;

iv. on the following day Mr Qureshi sought to correct some of the above [following conversations which he had had overnight with his wife and a friend of his]. This further evidence was as follows:

b) prior to going overseas in December 2005, his wife bought approximately $6,000 worth of clothes, presents for friends, shoes and luggage;

c) the tickets for two adults, two adult children and two children cost approximately $17,000;

d) his four children stayed in accommodation with people in Dubai and the accommodation cost for four children for forty days was approximately $9,000;

e) out of pocket expenses for the Hajj for Mr Qureshi and his wife were approximately $8,000;

f) the $55,000 amount was definitely withdrawn in cash;

g) to the best of Mr Qureshi’s recollection, the invoice in relation to Mr Saeed ‘could be with the liquidator’;

69 I deal later [in the discussion of ground 11 under my heading “General”] with some submissions that Mr Qureshi made with respect to Mr Wills’ evidence. However, he does not challenge the acceptance of the evidence, but says that the judge failed to balance it as against other evidence.

70 I will consider the material before the primary judge and this Court in some detail under discrete headings below.

71 The result of the case below was that the primary judge ordered the appellant to make restitution of the $125,000 plus interest and also found him liable to pay damages of $3,082,046.02 for conspiracy to defraud or for misleading and deceptive conduct. However, that amount was to be reduced should the Bank make further recoveries from other parties. The appellant was also ordered to pay exemplary damages of $150,000.

72 The appellant’s notice of appeal set out 48 grounds of appeal. None of the grounds of appeal question the decision on damages.

73 The appellant wishes to set aside the whole of the orders made by Einstein J against him on the basis that the judge should not have found him liable to the Bank.

74 The appellant again appears in person. Unfortunately, he has also suffered considerable health problems which has delayed his preparation and also caused the Court to take an unusual course in dealing with the appeal.

75 The appellant filed a few pages of written submissions. This was quite inadequate. However, counsel for the Bank was kind enough to provide a document over 90 pages in length which set out the Bank’s contentions and interleaved both what the appellant had originally written as well as his reply to the Bank’s submissions.

76 Although this document would not ordinarily be received as it was well over the maximum 20 pages permitted by the Rules, in the circumstances it was clearly the sensible way to proceed.

77 The appeal was listed for hearing on 27 and 28 May 2009. On 27 May 2009, Mr Qureshi appeared in person and Mr A A Henskens and Mr A R Zahra appeared for the Bank.

78 Mr Qureshi sought an adjournment based on grounds of ill health. Apart from him having problems concentrating on his presentation, he said he had also not been able to complete his written submissions. The Bank opposed the adjournment.

79 The Court has liberty to deal with appeals in whichever way it considers would be just, cheap and expeditious.

80 In the circumstances, the Court suggested that the appeal could be dealt with on the papers with strict time limits set for the completion of written submissions and with liberty to each party to apply for leave briefly to address those submissions.

81 After discussion, there was agreement to this proposal which was implemented by the Court making orders and directions accordingly.

82 After some extensions of time were granted, the appellant filed a folder containing 270 pages of submissions. The folder was arranged by purporting to answer the detailed submissions of the respondent noted above. The structure was to set out the respondent’s submission and then set out the appellant’s reply. It dealt with all 48 grounds of appeal.

83 The appellant’s submissions were countered by a 22 page set of further submissions by counsel for the Bank dated 31 July 2009.

84 The first paragraph of these further submissions echoes the thought I already had when reading the appellant’s submissions, viz “The Appellant’s submissions in reply in many places rely upon and assume that because the Appellant’s evidence was inconsistent with a finding by the trial Judge, then the trial Judge, for that reason alone, must have made an error.”

85 I must now turn to a detailed consideration of the submissions on appeal and the disposal of the appeal.

86 The grounds of appeal are in four sections, headed respectively, “Reliance”, “General”, “Qureshi” and “Oscar Budai”.

87 I will consider the fate of the appeal under those general headings, but will first make some general observations, then deal generally with the primary judge’s findings on credit.

1. General observations

88 In case the appellant is unaware of it, I should briefly note that this Court does not upset the decision of a trial judge on questions of fact merely because this Court may have come to a different view of the facts if it had conducted the trial. An appellant challenging findings of fact has a heavy task in satisfying this Court that the primary judge exceeded his mandate in finding the facts.

89 The first paragraph of the headnote to Fox v Percy [2003] HCA 22; 214 CLR 118 sums up the situation:

“A finding of fact by a trial judge, based on the credibility of a witness, may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous or where it is concluded that the decision at the trial was glaringly improbable or contrary to compelling inferences in the case.”

90 Of necessity, this structure of submissions meant that there was much repetition. I will deal with them in detail shortly. However, I will make some general remarks about the submissions at this stage.

91 The submissions repeat over and over again the appellant’s assertions:

(a) that no-one from the Bank ever met him;

(b) he was an independent external accountant to TDM;

(c) some computer and hard copy documents seemingly coming from his computer could have been forged;

(d) the Salehs were very proficient fraudsters;

92 These matters had all been deeply considered by the learned primary judge and rejected by him for the substantial reasons set out above.

93 The Bank submits that the appellant’s submissions not only contain a considerable amount of material that is not germane to the grounds of appeal, but also contain statements of alleged fact which were not in evidence before the primary judge. These criticisms are validly made.

94 Generally, the appellant’s submissions concentrated on relative minutiae and did not address why the primary judge was in error in rejecting these assertions.

95 The appellant spends a considerable amount of space in his submissions stating that he was TDM’s independent accountant and he only prepared letters etc for the use of the directors and not for the Bank.

96 As to this submission, the Bank’s counsel submit that if a misleading representation is made with an awareness that it may be transmitted to others, including the victim, liability may be attracted: Milner v Delita Pty Ltd (1985) 61 ALR 557 at 573-4.

97 In the instant case, the primary judge found at [286] that:

“[Mr Qureshi] was content to allow his professional standing to be utilised for the purposes of the fraudulent conduct. He stood by whilst the Bank acted upon correspondence sent by him to TDM which was plainly intended by him to be seen by the Bank, and acted upon by it.”

98 Indeed the whole of the material as digested by the primary judge shows that Mr Qureshi was far more intimately involved in TDM’s affairs than being a mere independent accountant naively acting on the assurances and raw figures supplied by the directors.

99 Indeed, the letters on their face convey the strong impression that they are intended to be shown to third parties.

100 There is little in Mr Qureshi’s submissions which provides any basis for an attack on the primary judge’s findings of fact on this vital issue.

101 I noted earlier the criticisms of the appellant’s final set of submissions that they included much irrelevancy.

102 One major matter in this category is the submissions made about the earlier hearing before White J affecting the parties shortly before the fraud was exposed.

103 I have already referred to the fact that the judge was influenced by the evidence which the appellant had given to White J at an earlier stage of the proceedings. His Honour formed the view that the appellant had misled White J.

104 The primary judge said at [229] that: “during the hearing before Justice White in late June and early July 2005 the position was that approximately $80,000 of the $125,000 paid into Mr Qureshi's ANZ account had been disbursed from that account. One of the issues that had been raised with Justice White was that the Bank contended that as this amount had been dissipated, there was a risk that the balance of the funds would be also dissipated.”

105 The transcript of the hearing on 30 June 2005 discloses the following exchange between Justice White and Mr Qureshi, on an occasion when Mr Qureshi, representing himself, was speaking from the bar table:

“His Honour: I have one other question, part of one of the grounds on which the bank seeks this order is, it says there is a risk that if the order is not made the money will be dispersed so as to frustrate a judgment which it says it will be entitled to in due course. In that respect it says there has already been about $80,000 of $125,000 withdrawn from the account. When we look at the documents you produced in response to the notice to produce there is no trace of the money, therefore I am invited to infer if you are free to deal with the balance it will disappear into the ether. What do you say about that?

Mr Qureshi: I used the funds for the running of my business. I put down in paragraph 27 in my affidavit (read)… I did work for TDM, I got paid, and that is basically it.

[The paragraph referred to in his affidavit comprised one sentence only which read: ‘The freezing of my account has caused me and my practice considerable embarrassment and financial inconvenience’.]”

106 The primary judge held at [230] that “seen in the light of his own evidence given in the present hearing, this evidence at the very least, constituted a disingenuous answer given to Justice White. Very arguably it was simply false. Under cross-examination Mr Qureshi had no acceptable answer to this inescapable conclusion. Ultimately in final address he sought refuge in the proposition that the funds which had been received were used to pay existing business expenses which included his own wages/directors fees.”

107 Einstein J continued, saying that “the matter was one of particular significance before Justice White. The answer was not that Mr Qureshi had had the moneys in a drawer of his desk and intended expending it in various ways including the trip to the Hajj. To say the least the whole episode casts a heavy pall on his credit. To my mind the episode is only one of the many indicators that Mr Qureshi's evidence cannot be regarded as reliable unless confirmed by contemporaneous written materials or by the evidence given by other witnesses who are in turn accepted as reliable.”

108 Although the appellant spends considerable time dealing with the hearing before White J, counsel for the Bank is correct in submitting that its only significance is that the primary judge found, correctly, that the appellant’s credibility was affected because he misled White J at that hearing.

109 On the other hand, the appellant seems to be saying, at more than one place in his written submissions, that because White J accepted his explanation of certain transactions, Einstein J was in error in not only rejecting the appellant’s explanations, but also in characterising the appellant’s conduct as conspiratorial.

110 Justice White’s view of the case on the facts before him at an early stage of the litigation is no guide as to the findings of fact that should be made after a long trial. In any event, if White J was misled by the appellant, his findings are even less likely to be of assistance.

2. Findings on Credit

111 There is no doubt at all that the primary judge was not at all impressed with Mr Qureshi’s credit as a witness. I have set out above in fairly great detail the primary judge’s views on the matter. Those views appear to be reasonable and in accordance with the material in evidence before him.

112 In particular, the primary judge found, as I have mentioned above, that the appellant’s credibility was greatly affected by his conduct before White J.

113 I will first deal with the major findings the primary judge made with respect to the appellant’s credit and then pass to the specific challenges that Mr Qureshi makes.

114 The primary judge held at [231] that there were “many anomalies in the evidence given by Mr Qureshi concerning the manner in which computers were used and concerning documents which, on his evidence, were not his documents, as well as signatures on documents which, on his evidence, were not his signatures. In truth his evidence that an outside person, probably Mohamad Saleh, had created these documents within his office without his knowledge, when examined in the light of some of the objective materials, must simply be rejected.”

115 Einstein J gave examples in [231] of his judgment which I will set out in full:

“Financial statements for 1 July 2003 up to 30 June 2004

a) a file note [PX 596] of the meeting between Mohamad Saleh, Hassanien Saleh and their solicitor on 16 November 2004 [the file note being taken by the solicitor on 16 November 2004] in the course of which meeting the note records a reference being made to the accountant as ‘Mascot Accounting and Taxation Services’, reference being made to the name ‘Zia’ and Mr Qureshi's firm’s telephone number and his own mobile number appearing in the note. The inference is of course that the brothers had told their solicitor that in respect of the proposed sale in November 2004, Mr Qureshi was their accountant and could be contacted in respect of information about TDM; and

b) his own time sheet [for 11 November 2004] which refers to a telephone call in respect of capital gains tax on sale of the business.

Financial statements for the year ended 30 June 2003

iii. PX 43-56 comprise a set of financial statements for TDM for the year ended 30 June 2003. The last page of this bundle appears to be a further disclaimer by Mascot Taxation which again appears to be signed by Mr Qureshi. Here again he gave evidence that this was not his signature. He denied that he had created the document to go with the above-described set of accounts. This denial flies in the face of the fact that [save for the signature], exactly the same document as the disclaimer was recovered from the hard drive of the server at the Mascot Taxation premises by Mr Wills. It was put to Mr Qureshi that it would be a terrible set of circumstances if someone not only forged his signature, but had 'snuck in' to his office and created the document on his computer. His answer was that the subject document was not his document ‘and that's the only explanation I have for it’: T 1129:45.

iv. The above evidence justifies the finding which is made rejecting his evidence that the above described Financial Statements for TDM for the year ended 30 June 2003 were not his documents and that the disclaimer had not been signed by him.

Exclusion from the Institute of Chartered Accountants – the fabricated correspondence purporting to have passed between Mr Qureshi and TDM in respect of fees for accounting services

v. Mr Qureshi gave evidence that in his 30 and 31 July affidavits he had taken great care to identify from the documents annexed to Mr Wills' affidavits [in short the materials which had been located from the deep memory], which materials were not Mr Qureshi’s documents and had not been created by him, so that the other documents were indeed his documents [T 1155-1156]. He also agreed that at any particular point in time he only ever used one letterhead. He was shown page 91 of the annexures to the 13 July 2007 affidavit of Mr Wills [being a document which he accepted was his own document] which was a disclaimer on Mascot Taxation letterhead and he agreed that this was the letterhead that had been in use at that time which was back in July 2003. The document included the logo of the Institute of Chartered Accountants. In similar fashion he agreed that the letterhead appearing on page 93 of the same set of documents had been used in his practice in October of 2003, as had the letterhead appearing at page 95.

vi. It then eventuated that in April 2005 a complaint had been made against Mascot Taxation by the Investigations Officer of the Institute of Chartered Accountants to the effect that the firm had continued to use the logo notwithstanding that Mr Qureshi had been excluded from membership of the Institute in late October 2001. An anonymous complaint appears to have been received by the Institute under cover of a facsimile of 7 April 2005 enclosing the non-compliant letterhead. Mr Qureshi accepted that this was probably the letterhead which he had been using some time shortly before 7 April 2005, but said that it had been an oversight on his part that he had not taken the logo off his stationery having been given notice to do so some years before. There were a number of other documents referred to in the Investigations Officer’s letter of 12 April 2005 [Exhibit P38] by way of materials still being used, making reference to the fact that the firm were still chartered accountants, including an extract from the website, an extract from the Sydney Yellow Pages and an extract from the White Pages. Also admitted into evidence was a further letter from the Investigating Officer at the Institute dated 2 June 2005 [Exhibit P38], referring to their earlier letter, advising that it was evident that there had been no changes to the website and threatening to refer the matter to the Australian Competition and Consumer Commission. It was put to Mr Qureshi that after that letter he had removed the Institute’s logo from the letterhead and his evidence was firstly ‘as per the requirements, yes’ and was then, ‘I think I may have taken the logo off my letterhead well before that time’.

vii. Mr Qureshi was then taken to pages 91, 93 and 95 of the materials which had been annexed to the 13 July 2007 affidavit of Mr Wills, [the letters spanning the period between July 2003 until October 2004], it being put to him that in each case these letters still used the Institute logo. Indeed as Mr Qureshi had acknowledged, annexure A to his own principal affidavit, included a number of items of correspondence [dated between November 2003 and June 2005] passing between Mascot Taxation and TDM, purporting to set out fees for professional services rendered and letters in that regard and amounts which were said to still be outstanding as at June 2005. In each of these cases the letters had not included the Institute's logo. It was then put to Mr Qureshi that the reason that there were no logos on those letters was because they had all been created, not upon the dates which they bore, but for the purposes of his giving false evidence in these proceedings after he had changed his letterhead in June 2005. It was put to him that if this correspondence had been created at the dates which the letters appeared to bear, they should have had the Institute’s logo upon them which had been used on his correspondence at that time. His evidence was: ‘The logo should be on there’ [T 1163]. Notwithstanding his attempt to justify this position by reference to the suggestion that sometimes one took the logo from another file and copied it on to the letterhead, the clear finding mandated by this evidence is that the above described correspondence was fabricated for the purposes of these proceedings.

116 The judge further found at [232] that “Mr Qureshi's memoranda of fees between August 2003 and June 2005 with regard to accounting fees of just over $125,000 were fabricated in May or June 2005 for the purposes of disguising his true involvement in the fraud”. In so finding he took the following matters into account:

“i. Mr Qureshi admitted that TDM operated on an accruals basis such that expenses had to be disclosed in the accounts in the period in which the expenses were incurred (T1141:16 to 1141:24).

ii. similarly, Mr Qureshi gave evidence that his own practice operated on an accruals basis (T 1199:36 to 1199:48).

iii. despite that evidence, neither the accounts of TDM prepared by Mr Qureshi nor Mr Qureshi’s own practice accounts disclosed accounting fees in the amounts claimed to have been billed by Mr Qureshi (compare Mr Qureshi’s memoranda of fees at Annexure “A” to his 1 August 2006 affidavit with the accounts he says he prepared for TDM covering that period).

a) the failure of the memoranda of fees to comply with the requirements for a tax invoice: see s 29.70 of A New Tax System (Goods and Services Tax) Act 1999. The balance of probabilities strongly favours the proposition that an intelligent accountant would be aware of such basic requirements under the GST legislation;

b) reference is made elsewhere in this judgement to the payment of the $125,000 into a new private bank account opened only weeks before the receipt of the payment. It is at the least very curious that the payment would not have been received by Mr Qureshi's firm;

c) reference is made elsewhere in this judgment to the manner in which the $125,000 was dispersed and to the problems with the explanation given to Justice White;

d) the assertion by Mr Qureshi in his affidavit that he had not received any moneys in respect of accounting services provided between the period 1 August 2003 and 7 June 2005 and that $125,000 was owing was in contradistinction to the above-described memorandum of fees found on his computer which was dated 9 July 2004, cited services totalling $7,000 but, significantly, recording a payment of $3,500 (see Mr Wills’ 13 July 2005 affidavit at page 28);

e) Mr Qureshi admits that he prepared the cash flow documents relating to TDM [T 1152:1-14];

f) those cash flows show accounting fees of only $650 per year from June 2005 up to May 2006 and there is no reference to an annual retainer fee of $25,000.

g) the TDM Accounts for the financial year ended 30 June 2004 disclosed accounting fees of $14,650 for 2004 and $12,320 for 2003 (Exhibit OB2 at page 18);

117 The judge found at [232] a number of inconsistencies “thrown up by the evidence as between the timesheets sought to be relied upon by Mr Qureshi and the observable facts”. He gave as examples:

“i. the evidence was that on or about 11 April 2005 Mr Petts received a bundle of documents by courier which included annual financial statements for TDM to 30 June 2004, financial statements for the nine months ending 31 March 2005, aged payables as at 31 March 2005, aged receivables as at 31 March 2005 and a TDM credit application;

ii. Mr Qureshi's time sheets however suggest that on 12 May 2005 he is still preparing 2004 final accounts;

118 His Honour noted at [234] that:

“The evidence in relation to the Whitemore Group showed that Mr Qureshi was a founding director of the company which was registered in late March 2004. Mohamad Saleh was also a founding director of the company as at late March 2004. They were the only ever two directors of that company. Mr Qureshi was a 50 per cent shareholder owning one of the two ordinary shares in the company and Mohamad Saleh held the other 50 per cent shareholding in the form of the second ordinary share. Documents which were extracted by Mr Wills from the deep memory of Mr Qureshi's computer showed [and Mr Qureshi accepted] that the Whitemore Group was a proposal to amalgamate a number of businesses under the umbrella of the company ‘the Whitemore Group Pty Ltd’. One of those companies was proposed to have been TDM. Another was proposed to be Mascot Taxation and Accounting Services. The proposal was also that other companies, namely Chullora Meats and Marrickville Bus Lines, a YMCA camp and a travel agency called Telfords Tours were all to be rolled into the group.”

119 The primary judge considered that all of this evidence clearly disclosed that “Mr Qureshi was part and parcel of a proposal for business activities to be rolled into the Whitemore Group, even if it be that those proposals never ultimately achieved fruition. Importantly also Mr Qureshi is shown to have been careful to deny any responsibility for documents retrieved from his own computer which related to the Whitemore Group.”

120 The judge found at [235] that there was a “particular significance in the contraposition between:

i. on the one hand, the document which Mr Wills extracted from the deep memory of Mr Qureshi's computer [in the form of the document at page 48 of the annexures to Mr Wills’ affidavit of 13 July 2007] which records sales for TDM for the 2003 financial year at $2,695,000 and on the other hand, the document being the financial statements for TDM for the year ended 30 June 2003 [which Mr Qureshi prepared and which became Exhibit P41] and which records sales for that income year of $22,964,117;

ii. the very same contraposition is apparent in relation to the 2004 year where the sales at page 48 of the annexures to Mr Wills’ statement recorded at $2,960,631 as compared to the financial statements for 2004;

iii. the same circumstance may be seen in the contraposition between the sales at page 48 of the annexures to Mr Wills statement for the 2005 income year recorded at $4,141,893 as compared to the financial statements for 2005;

iv. importantly the evidence of Mr Wills showed as the ‘meta data’ for the document appearing at pages 48 and 49 of the annexures, that the user shown on the computer system as having created the document was ‘Zia’, which is of course a reference to Mr Qureshi.”

121 The judge found at [236] that “the documents extracted from the deep memory of Mr Qureshi's computer were his documents”. He rejected “in its entirety the proposition which he [Qureshi] put forward to the effect that Mohamad Saleh had fabricated these documents using his computer and without his knowledge or consent. The finding is that the documents were created by Mr Qureshi as indicated on the user folders.”

122 The primary judge noted at [237] that “the evidence established beyond a shadow of a doubt that Mr Qureshi's business account was chronically in debit from approximately December 2003 up to approximately August 2005, the bank statements disclosing a great many reversals of cheques and dishonour fees.”

123 There was also before the primary judge (para [239]):

“The Business Provisions Account covering the period from December 2003 until August 2005 [explained by Mr Qureshi as a kind of trust account used when clients wanted him to deduct their fees from the refund: he would receive payments on behalf of clients and would deduct his fees and then disperse the balance]. In general terms the account did not deal in large sums of money. In one instance however this account shows a deposit into it of $237,560 made on 13 May 2005. Mr Qureshi was unable to recall where this money had come from. His answer was that it could have been an amalgamation of cheques. He could not tell until he saw the deposit book. The deposit book however had never been produced to the liquidator. It was put to Mr Qureshi that it was curious in the extreme, that he could not recall, at the very time when the fraud was starting to be perpetrated on the Bank, having received the amount of $237,560.”

124 Additional matters which the primary judge took into account (para [240]) in relation to the ultimate decision concerning the part Mr Qureshi played included the following:

With regard to the several phone calls Mr Qureshi made to Mr Edge in May, June and July 2005, Mr Qureshi stated that [according to the phone records produced by the plaintiff Ex P33] approximately three quarters of the calls went to Mr Edge’s message bank. However, … the evidence of the phone records which identify which calls go through to a message bank and which are actually picked up by the receiver [read with the aid of the table starting at p1 of Exhibit P70 which identifies those calls which went through to a message bank], shows that there were a number of calls [of varying duration] made which were inconsistent with Mr Qureshi’s submission.

Of note, there were several lengthy phone calls of approximately 3-5 minutes duration between 8 June 2005 and the remainder of that month. Mr Qureshi in final address maintained that one of these lengthy phone calls made to Mr Edge on 8 June 2005 was for the purpose of congratulating him on the purchase of TDM and to offer his accounting services for TDM [MFI D3].

[The Bank] submitted that the frequency and length of the phone calls during this time was inconsistent with Mr Qureshi’s evidence that on or about 7 June 2005 he felt that he had offended the Salehs, received payment for his services and that the Salehs had collected all their TDM records from Mr Qureshi. Further, the plaintiff submitted that it was plainly inconsistent with the account provided on oath by Mr Qureshi that he spoke to Mr Edge on only two or three occasions in May and June 2005 [T 1044:49 to 1045:1] or that he had no contact with the Salehs after 7 June 2005 [T1036:17 to 1036:20].”

125 In his final address at first instance, Mr Qureshi, as set out by Einstein J at [240] “maintained that the volume of phone activity to Mohamad Saleh after the Salehs were said to have picked up their records for TDM, were for the purpose of maintaining or improving his relationship with a client he was unhappy to lose.”

126 The primary judge rejected this explanation. His Honour said that “the timing and frequency of calls between these individuals is consistent with a collaborative effort by those persons to mislead and deceive the Bank.”

127 The primary judge further noted at [240] that “even though this, by itself, could not affect the conclusion with respect to Mr Qureshi, if one may return to the evidence given by Mr Edge, it may be seen that he was so evasive in his evidence as to the frequency of communications that he was prepared to ‘pluck’ a number out of thin air after giving a[n] overly broad estimate of 7 to 35 communications (T1404:39 to 1404:54).”

128 The primary judge also highlighted at [240] some of the “chronology relating to what occurred in relation to Mr Qureshi's approach to and evidence with respect to computer records” and his Honour took the following matters into account:

“a) when required by orders made by the Court of Appeal on 11 June 2007 to identify which computers were used to create documents relating to TDM, Mr Qureshi only identified the server in his offices. The evidence of Mr Wills established that that server could not have created or modified Word or Excel documents and that it had seen very limited activity after 2004;

b) when pressed to identify other relevant computers prior to the commencement of the hearing, Mr Qureshi asserted for the first time ever and on the eve of the final hearing that he also had a laptop computer which had either been lost or stolen en route to the Hajj in December 2005. Mr Qureshi was unable to say whether any documents relating to TDM were on that laptop (T 1089:22 to 1091:40; T 1235:52 to 1237:16);

c) in the witness box, Mr Qureshi’s evidence about the laptop changed dramatically. Knowing that the laptop could not be forensically examined and that he needed an explanation for the documents missing from the server examined by the Bank’s computer expert Mr Wills, Mr Qureshi asserted that it had been used to create financial statements and correspondence relating to TDM, prepare income tax returns for Mr Edge and that he had copied files from his server to a CD-ROM before transferring those files to his laptop;

d) despite the belatedly admitted use of the laptop for work relating to TDM, Mr Qureshi was completely unable to explain why he did not discover the documents held on that computer before travelling to the Hajj or make copies of those documents available to the receiver of TDM, disingenuously suggesting that it may have been a mistake or an oversight on his part.”

129 The primary judge further found that “in truth no satisfactory explanation has ever been given by Mr Qureshi as to why he was unable or unwilling to produce basic records relating to TDM. As the Bank has submitted his evolving evidence on that issue did not satisfactorily explain his failure to keep paper records, his failure to maintain electronic records, his failure to provide records to the receiver of TDM, his failure to provide proper discovery, his failure to identify (whether in his list of documents, in answer to notices to produce or subpoenas or in correspondence) the current or past location of such documents. He admitted the destruction of documents on a number of occasions (for example T1080:6-1080:18; 1224:43-1225:2; 1225:4-1225:15), conduct clearly in contravention of the requirements prescribed by s 286 (1) of the Corporations Act 2001 to maintain records for 7 years.”

130 His Honour continued:

“Mr Qureshi asserted, inconsistently with the position that all documents on the hard drive were private and confidential, and only when incriminating documents were located, that Mohamad Saleh had access to the hard drive and that they were Mohamad Saleh’s documents and not Mr Qureshi’s private and confidential material.”

131 The primary judge formed the view, (see [240]) that, after “taking into account the strictures in relation to the onus of proof where fraud is alleged,” the evidence before him clearly established that “Mr Qureshi was plainly doing more than just checking the mathematical accuracy of figures provided to him. On his own evidence he sought further financial information from TDM when preparing its accounts and visited TDM’s premises with his laptop on a number of occasions to collect information to assist in the preparation of those accounts.”

132 The primary judge further found that the appellant “must have known from dealing with TDM over an extended period that it could not have sales of more than $20 million per annum”. He considered that this finding was reinforced by the fact that Mr Qureshi had “admitted on the pleadings to providing a budget analysis for TDM”. The primary judge found it “difficult to accept that a budget could be prepared without the need to get into the records of the company, getting a feel for the customers and understanding the business.”

133 I noted earlier that Mr Qureshi’s letter of 16 May 2005 had great significance in the case. I should now consider its significance in greater detail.

134 There is no doubt, as found by the primary judge at [241] that this letter, the full text of which has been set out earlier in these reasons, was clearly prepared by Mr Qureshi, in which he confirmed that TDM’s quarterly BAS forms and payments were handled by his office and that TDM’s GST commitments were up to date.

135 The primary judge continued at [241] and following:

“In fact, TDM lodged monthly BAS forms rather than quarterly forms but had not lodged any BAS forms after March 2004 (cf Mr Parbery’s 24 May 2007 affidavit at [24]). Mr Qureshi’s evidence that he prepared cheques in respect of the GST payments made payable to the Australian Taxation Office and provided those cheques to the directors of TDM is inconsistent with the cheque reconciliation prepared by Mr Parbery which discloses no evidence of cheque payments to the ATO and the fact that no BAS forms had been lodged after March 2004. Hence there arises a high question mark in respect of the evidence given by Mr Qureshi of preparation of the cheques.

in fact presented

136 The primary judge took the view at [242] that, “properly read, the letter of 16 May 2005 represented that Mr Qureshi's firm handled TDM's quarterly BAS forms and GST payments. Indeed the letter stated that the ‘completed form and cheques for the net GST were forwarded to the Australian Taxation Office’.”

137 The primary judge did not consider that “any of these anomalies were properly clarified by any of the evidence given by Mr Qureshi. The letter which was written clearly suggested his office’s involvement in the supervision and payment of GST by TDM.”

138 The judge’s ultimate conclusion at [244] was that “the detailed cross-examination of Mr Qureshi, assessed in the light of all of the evidence from the many witnesses called by the Bank including the documentary evidence, as well as the evidence of Mr Wills and Mr Westwood, satisfied [him] that Mr Qureshi was a knowing participant in the fraudulent conspiracy.” That decision was acknowledged to be aided by the materials extracted by Mr Wills from the deep memory of Mr Qureshi's computer.

139 The primary judge thus rejected “the notion that Mr Qureshi was himself no more than a victim of a conspiracy engaged in by Mohamad Saleh, Hassanien Saleh and Mr Edge” as being inconsistent with the evidence viewed as a whole.

140 The primary judge added that “the evidence which Mr Qureshi gave in terms of the circumstances in which he initially permitted Mohamad Saleh to have the use of an office within his firm and in respect of the whole of his relationship with Mohamad Saleh is very strongly suggestive that he was not frank with the Court in truly explaining the parameters of that relationship. Nor is it possible to speculate as to what if any other discussions or arrangements may have been entered into between himself and Mohamad Saleh with respect to the proceeds of the frauds committed on the Bank.”

141 The judge noted that “from beginning to end Mr Qureshi had sought to extricate himself from the frauds by contending that Mohamad Saleh in particular was responsible for fabricated documents and for achieving total access to Mr Qureshi’s computer without Mr Qureshi’s knowledge or consent.”

142 The primary judge clearly rejected that contention. He ruled, at [256] that “there [were] far too many anomalies in Mr Qureshi’s evidence to permit the Court to uphold this ‘I know nothing’ claim. Indeed almost every indicator in Mr Qureshi’s behaviour relating to this litigation speaks volumes in terms of his endeavours to ‘cover up’ the realities of what occurred. To name but one matter, why would he have fabricated his own memoranda of fees, had he been innocent of wrong doing.”

143 The appellant says that the primary judge erred in assessing his credibility.

144 The mere fact that Mr Qureshi states that the judge erred in making a finding of credit is not enough. He must point to some specific error that the primary judge made in assessing credibility.

145 I have trawled through the appellant’s submissions. It is difficult to identify specific challenges to the fact finding other than broad statements that the primary judge erred.

146 Indeed, I do not see any error in the primary judge’s reasoning or fact finding.

3. Reliance

147 In his “Reasons for Appeal”, Mr Qureshi set out grounds of appeal under this heading as Reliance 1-1.9. The Bank has referred to these as grounds 1-10 and I will adopt that latter classification.

148 The first ground is that the primary judge erred in stating that the Bank relied on the documents created by the appellant for TDM.

149 The appellant’s submissions state on more than one occasion that he only prepared documents for TDM, his letter was to the directors of TDM and that he had no contact with Bank officers.

150 The appellant contends that, in its haste to do the deal with TDM, the Bank did inadequate due diligence, failed to heed the warning signals and now seeks to put the blame on Mr Qureshi, a person who was the mere external accountant for TDM, who never met or corresponded with the Bank and who provided documents for TDM’s directors and them alone.

151 The Bank says that Mr Qureshi created the documents which misled it into making the loan, including:

*

152 Mr Qureshi does not dispute authorship of each of these documents. However, he says first that an independent accountant can only act on the information given to him by the officers of the company. He prepared the documents on that basis. The only persons to whom he uttered the documents were the directors of TDM who knew the true position.

153 Mr Qureshi concedes that the documents have turned out to be fraudulent. However, he says, that is not the accountant’s responsibility: it is the directors of the company themselves that have to certify the correctness of accounts, not their accountant.

154 It is clear that the primary judge took into account Mr Qureshi’s current contention, but, in view of the evidence of the Bank officers, which he accepted, and of the general evidence, he accepted that even if there had been no direct communication between Mr Qureshi and the Bank, the documents which originated from Mr Qureshi were intended to be deployed to the Bank in order to achieve the purpose of the conspirators.

155 As he did before the primary judge, the appellant pointed on more than one occasion to the fact that he elicited in cross examination that it was possible that someone else, particularly one of the Saleh brothers could have accessed the appellant’s computer and produced some of the impugned documents. However, whilst that scenario was a possibility, it was one the primary judge took into account and rejected. He was within his mandate in so doing.

156 Mr Henskens pointed out in his submissions that the primary judge made a series of findings that the Bank officers relied on Mr Qureshi’s documents, eg Mr Budai at [61], [175] and [176], Mr Harrison at [62], Mr Morris at [85] and Mr Placek at [142]. In particular, the reliance placed on the material by Mr Placek, who was responsible for giving the Bank’s final approval to the loan, was very significant.

157 The primary judge held at [142] that at the meeting of 3 June 2005, Mohammed Saleh gave Mr Placek a copy letter from Mr Qureshi to the directors explaining some discrepancies and this letter gave Mr Placek comfort about the loan as he took it as “independent corroboration” of the explanation of apparent discrepancies.

158 Apart from arguments with which I have already dealt, Mr Qureshi put that the Bank officers could easily have checked information with St George Bank and others and, had they done so, they would have been sufficiently alerted to facts which would have at least restrained their haste to complete the loan transaction.

159 Indeed, the appellant puts, had Mr Placek made personal contact with him, any misinformation would have been corrected.

160 Even accepting, for the purposes of argument, that these submissions are factually accurate, the Court has to consider the case of what actually happened. That was, that the Bank officers relied on the material that emanated from the appellant to make their decision.

161 Then, the appellant submits, no reasonable person in his position would have imagined that a lending institution would have made a loan of the magnitude of the present one on the strength alone of the appellant’s letters to the directors, and further enquiries would have meant that no loan would have been made.

162 However, here again, the primary judge’s findings of fact, which were within his mandate, are to the effect that the Bank did rely on the appellant’s letters and there is not the evidence to support the proposition that no reasonable financier would have acted otherwise.

163 Grounds 2-6 each relate to findings that the appellant prepared schedules of figures relating to TDM and certified key facts.

164 The appellant does not challenge the fact that he prepared schedules. However, he says that he prepared them from information given to him by TDM as any independent accountant would. He says that the finding that he certified figures is erroneous.

165 There is no dispute that the letters, in fact, contained false information. However, the appellant says that that information was not invented by himself, but was submitted to him by the Salehs.

166 The kernel of this argument is that accountants only prepare documents with the figures that the client has supplied to them. Thus, the client, when it receives the accountant’s report knows that the figures are its own and is not misled by what is in the accountant’s report. Why then, the appellant asks rhetorically, should that letter amount to a certification to a lender?

167 Indeed, the appellant puts, he never wrote a letter of certification, nor could he, he was not a registered auditor, merely the company’s accountant.

168 There would be many situations where what the appellant puts would be credible. However, to deal with the point in the context of any particular case, one must look at the full picture. The primary judge did that and considered questions of fact which he decided against the appellant and in respect of which there are no grounds for challenge which are in my view entitled to succeed.

169 The appellant makes the point that an independent accountant’s statement in a letter to the directors that “TDM’s debtors’ ledger are correct” could not be considered a “certification” of correctness. The answer is that, under certain circumstances, including the present case, it could well be so.

170 Grounds 7 and 8 assert that the judge erred in accepting (7) Mr Placek’s explanation as to why, after being alerted to a possible discrepancy, he (Placek) did not make personal contact with the appellant and (8) Mr Placek’s evidence that he did not deal directly with clients.

171 All that need be said against these submissions is that the primary judge accepted Mr Placek as a witness of truth and did not so accept the appellant and there is no reason to set aside that assessment.

172 The remaining grounds under this heading, and allied grounds 20-22 and 42 and 44 have either been considered in connection with earlier grounds or raise queries as to findings of fact which could not, in any event, affect the result (referred to in the Bank’s submissions as “minutiae”).

173 Accordingly, I am not persuaded by anything in Mr Qureshi’s submissions that the primary judge erred in his findings on reliance.

4. General

174 This section deals with Mr Qureshi’s grounds General 1-1.4 or Bank’s grounds 11-15.

175 Grounds 11-15 focus on the evidence of Mr Wills, a computer expert, and Mr Petts, an officer of another finance company, GE.

176 The problems that the appellant faces with these grounds are that the primary judge accepted the evidence of Mr Wills and Mr Petts.

177 I have already set out Mr Wills’ evidence and the primary judge’s findings with respect to that evidence.

178 Mr Qureshi conceded on this appeal that Mr Wills was a creditable witness.

179 No evidence challenging Mr Wills’ methodology was called on behalf of Mr Qureshi. However, he sought to explain this in his submissions by saying that he was a litigant in person without the experience to know he needed his own expert and without the resources to retain one.

180 These statements, even if true, do not permit this Court to set aside the judge’s findings.

181 The appellant says that the primary judge omitted to take into account other evidence and read it in connection with the evidence of Mr Wills. This submission is not justified by reference to the judgment where the primary judge did indeed consider Mr Qureshi’s evidence and preferred Mr Wills’ evidence.

182 As to Mr Petts, the appellant submits that the financial details given to GE when TDM obtained finance for the acquisition of a commercial delivery van showed that there was a very different analysis of TDM’s financial position from that presented to the Bank via Mr Petts.

183 The Bank’s answer to this is that, assuming the submission is factually correct, there was no evidence to show that Mr Petts personally was aware of the earlier financial information and, indeed, Mr Qureshi never suggested as much in his cross-examination of Mr Petts.

184 In my view, this is a good answer.

185 I cannot see anything in the submissions made under this heading which would suggest the judgment below was in error.

5. Qureshi

186 This section deals with Mr Qureshi’s “Reasons Qureshi 1-2.9”, Bank’s classification 16-35.

187 Ground 16 is “His Honour erred in saying that Qureshi put together fabricated accounting documents.”

188 Part of the appellant’s submissions on ground 16 were that it was possible that other persons had access to Mr Qureshi’s computer and produced the fabricated documents on that computer.

189 It is true that the witnesses to whom the question was put acknowledged that this was a possible scenario. That fact is not sufficient for the appellant to succeed in his submission that, in fact, other people fabricated the documents, which proposition the primary judge rejected for a number of reasons.

190 One of the reasons for that rejection was the receipt by the appellant of $125,000 from TDM. This also featured as grounds 24 and 34-35.

191 The primary judge said at [227] that this matter was “curious”. He did not accept the appellant’s explanation as to the rather strange manner in which this payment was made and the money used by the appellant.

192 The appellant made various responses to challenge this payment having significance. He said it was just for payment for fees, and that it was absurd for anyone to think that he would be prepared to be involved in a monstrous fraud which might net $7,000,000 for a mere $50,000 (the amount calculated as the “after tax” amount on $125,000 by the appellant in his submissions at p 138).

193 One of the matters which troubled the primary judge was the appellant’s reluctance to give any information to the receiver’s associate, Mr Ayres, about the payment. This also featured as ground 25.

194 The appellant, in his written submissions, merely says as to this matter that he could see no reason why he should speak to Mr Ayres, a perfect stranger, about his client’s affairs, particularly over the telephone. However, the other attempts of the appellant to avoid giving explanation about the receipt of funds inhibits ready acceptance of this explanation.

195 The problem for the appellant is that, although White J seemed to take a different view, the primary judge took these matters, together with other factors, into account to find that the appellant was far more closely involved with TDM than he would have the Court believe.

196 Mr Qureshi still maintains that certain of the fabricated documents taken from his computer were forged by others, including the November 2004 version of the 2004 TDM accounts and the May 2005 version of those accounts. However, whilst it was conceded by the experts that these documents could have been prepared by others, the finding of the Court was otherwise and has not been shown to have been in error.

197 Ground 17 is “His Honour erred in saying that Qureshi was part of a conspiracy to fabricate TDM St George Bank Statements”. Ground 19 covers the same point and grounds 29 and 38 are closely connected. Ground 30 raises the matter of the fax imprint which is also considered in this section. I also deal with ground 39.

198 The Bank says that the primary judge was correct to say in paragraph [12] of his judgment that the fraud was successful by reason of three key factors, the third of which was the care taken to provide completely fabricated TDM St George Bank statements to the Bank.

199 The primary judge found at [128] and following that about 1 June 2005, Mr Budai received what appeared to be 12 months of TDM’s bank statements from TDM by facsimile. The judge found that these statements had been received by TDM from the appellant. An officer of the St George Bank gave evidence which showed that these statements were completely false. For instance, whilst the proffered statements showed balances of one million dollars in credit, in fact the true credit balance of the account never exceeded $100,000.

200 There is no doubt that the statements were fabricated. As to the appellant’s involvement in that fabrication, the copy statements in the Blue Appeal papers bear the imprint of the fax machine of “Mascot Taxation N Acc” (Mr Qureshi’s business). The imprint clearly appears at Blue 756. However, the judge made no finding as to the significance of that imprint.

201 Mr Qureshi says that the imprint is a forgery. His authorised imprint is merely “Mascot Taxation”.

202 I need not spend too much time on this ground as the primary judge did not find that the appellant was part of a conspiracy to fabricate the bank statements. However, as I have noted, he did find that the copy statements uttered to the Bank emanated from the appellant.

203 Ground 39 is that the primary judge erred in accepting evidence from Mr Budai that he received the forged bank statements from the appellant.

204 The transcript shows that, although Mr Budai originally said that he did so receive the statements, he corrected this in evidence in chief to say that he received the statements via TDM. There is nothing in this ground.

205 Ground 18 complains about the finding that the appellant faxed a letter to Mr Petts providing additional trading information about TDM.

206 The main submission as to why this was not correct is that the fax was imprinted as having been sent as at 11:23pm and Mr Qureshi swore he never worked so late in the office.

207 However, the fax was sent from the Mascot Taxation office, the appellant conceded he had prepared the letter and he never put to Mr Petts in cross-examination that he had not faxed the documents to him.

208 Ground 23 and ground 28 are that the judge erred in saying that the evidence mandates a knowing participation of Qureshi in the fraud.

209 The appellant, of course, challenges that finding. However, I agree with the submission of the Bank that there was abundant evidence to support it and nothing put in the appellant’s submissions makes me think otherwise.

210 Ground 26 asserts that the primary judge was in error in stating in paragraph [227](iii) of his judgment that the appellant did not provide soft copy accounts to the receivers. When read as a whole, and together with paragraphs [225] and [226] of the judgment which are quoted in paragraphs [65] and [66] above, that paragraph reveals an appreciation by the primary judge of the evidence that most, if not all, of the soft copies of TDM documents on the appellant’s computer had been deleted and were only able to be recovered subsequently from the “deep memory” of that computer. The appellant has not in my view demonstrated that the primary judge proceeded upon a misunderstanding of the evidence in any relevant respect.

211 Grounds 27 and 31 challenge the judge’s finding that there was a close link between the appellant and Mohamad Saleh. Ground 33 is closely connected. Again, the assertion of error is made without basing it on anything other than the appellant’s own evidence before the judge which he rejected.

212 Ground 32 challenges the primary judge’s use of the comments that he had made to a public authority that he had known Mr Faowzi Saleh and Mrs Khadige Saleh when he had had little contact with them as material which affected the appellant’s credibility.

213 I can see no reason why this material was not relevant to that issue.

214 There is, thus, nothing in the grounds listed under this head which would lead me to modify the primary judge’ findings.

6. Oscar Budai

215 This section deals with Mr Qureshi’s “Reasons Oscar Budai 1-2.2”, Bank’s classification grounds 36-48.

216 Ground 36 is baldly “His Honour erred in saying that a bank officer, Mr Oscar Budai’s evidence was reliable.”

217 The Bank’s submissions are that the appellant does not put forward material to support this ground and that, in any event, Mr Budai’s evidence was plainly corroborated by other Bank witnesses.

218 In his written submissions of July 2009 at pp 244-246, Mr Qureshi points to eight alleged inconsistencies in Mr Budai’s evidence and seven significant instances where his evidence was not corroborated.

219 After setting out that list, Mr Qureshi submits, “It is hard to understand how His Honour could come to the view that Budai was a creditable witness, having lied and then correcting his lies, about dates and facts which were unforgettable.”

220 Ground 37 is connected. It complains that the judge did not take into account on the question of Mr Budai’s credit that his first affidavit contained statements which were contradicted by his later two affidavits.

221 The Bank acknowledges that Mr Budai had made early affidavits which were prepared for an interlocutory hearing with Mr Edge. However, those affidavits were not read or referred to before Einstein J, nor was it suggested before him that they might go to Mr Budai’s credit. In any event, the bank denies that there were inconsistencies.

222 Mr Qureshi says that the judge should have regarded the earlier affidavit as being in evidence for this purpose.

223 In my view, the Bank’s submissions are correct.

224 Ground 47 is in much the same plight.

225 Ground 40 is that the judge erred in accepting Mr Budai’s evidence that he telephoned the appellant. Ground 48 covers the same territory.

226 Paragraph 139 of the judgment makes it clear that the judge did not so find.

227 Ground 41 is de minimis.

228 Grounds 43 and 45 say that the primary judge failed to give significance to the fact that Mr Budai changed his evidence on certain matters. The instances given do not in the whole mass of material appear to have any great significance even if established.

229 Ground 46 alleged that the judge erred in paragraph 142 of the judgment in saying that Mr Edge explained the discrepancy in the accounts to Messrs Placek, Cook and Budai.

230 This may be a misreading of [142] as [143-4] make it clear what the judge was saying. However, the point being made at [142] was not who said what, but that the Bank gained comfort in the information that had come from the appellant.

231 Thus, there is no matter in this section of the grounds of appeal which would incline me to modify the primary judge’s finding.

7. The Result of the Appeal

232 Despite thick masses of paper and many thousands of words, there is nothing in the submissions made by the appellant which cast any serious doubt on the primary judge’s decision.

233 I thus propose that the appeal be dismissed with costs.

ADDENDUM

234 Since the above was prepared and on 15 December 2009, the Court was notified that the appellant became a bankrupt on 3 November on the application of the respondent.

235 Sections 58 and 60 of the Bankruptcy Act 1966 (Cth) cast some restraint on continuing proceedings after bankruptcy.

236 The present proceedings are not an action commenced by the bankrupt (vide s 60(3)) nor does a court by handing down reasons mean that a creditor has taken a fresh step in the proceedings (vide s 58(3)(b)).

237 However signing judgment might well be a fresh step in the proceedings.

238 Furthermore where there is an appeal pending and the respondent causes the appellant to be made bankrupt before the reserved judgment is delivered, the respondent may have forfeited its right to costs of the appeal, if the appeal is dismissed after sequestration.

239 Thus the Court simply publishes these reasons and stands the proceedings over before Young JA on 4 February 2010 for mention or for formal orders to be pronounced.

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Citations

Qureshi v Commonwealth Bank of Australia [2009] NSWCA 421

Most Recent Citation

Qureshi v Commonwealth Bank of Australia [2010] FCA 155

Cases Citing This Decision

1

Qureshi v Commonwealth Bank of Australia [2010] FCA 155

Cases Cited

4

Statutory Material Cited

1

Fox v Percy [2003] HCA 22

I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41

Milner v Delita Pty Ltd [1985] FCA 478

CITATION:	Qureshi v Commonwealth Bank of Australia [2009] NSWCA 421
HEARING DATE(S):	27 May 2009 and on the papers
JUDGMENT DATE:	22 December 2009
JUDGMENT OF:	Beazley JA at [1]; Macfarlan JA at [2]; Young JA at [3]
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	BANKRUPTCY- appellant, who had been sued by bank, is made bankrupt after Court of Appeal reserves decision- consequences. RESTITUTION- recovery of moneys advanced by mistake- funds received by the appellant out of funds advanced to the fraudsters for accountancy fees- whether bank could recover them. TRADE PRACTICES- misleading and deceptive conduct- negligent conduct- fraud against bank- moneys advanced by bank to company under receivables finance facility- accountant's reports provided to bank- bank induced to lend because of various documents provided by the appellant, an accountant, relating to the finances of the company- appellant's responsibility for documents- bank's reliance on those documents- accountant liable to bank.
LEGISLATION CITED:	Bankruptcy Act 1966 (Cth), ss 58, 60
CATEGORY:	Principal judgment
CASES CITED:	Fox v Percy [2003] HCA 22; 214 CLR 118 Milner v Delita Pty Ltd (1985) 61 ALR 557
PARTIES:	Zia Ul-Islam Qureshi (Appellant) Commonwealth Bank of Australia (Respondent)
FILE NUMBER(S):	CA 40015/08
COUNSEL:	Appellant in person A A Henskens and A R Zahra (Respondent)
SOLICITORS:	Appellant in person Henry Davis York, Lawyers (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 50149/05
LOWER COURT JUDICIAL OFFICER:	Einstein J
LOWER COURT DATE OF DECISION:	28 August 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Commonwealth Bank of Australia v Mohamad Saleh & Ors [2007] NSWSC 903