Appeal Dismissed: Borrower Cannot Avoid Lender's Right to Possession

The Court of Appeal dismissed an appeal brought by borrowers who alleged that their signatures on loan documents were forged and that they were misled by a broker. The Court affirmed the primary judge's decision to grant possession of the property to the lender.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [COMPANY] [2013] NSWCA 122 Hearing dates: 20 March 2013 Decision date: 14 May 2013 Before: McColl JA; Barrett JA; Tobias AJA Decision: Appeal be dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: MORTGAGE - fraud - whether mortgage entered into - whether signatures forged - whether loan existed - whether broker misled [NAME] - overpayment Legislation Cited: Civil Procedure Act 2005 Contracts Review Act 1980 Supreme Court Act 1970 Cases Cited: [NAME] v [COMPANY] (1994) 34 NSWLR 155 Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35 [COMPANY] v [NAME] of Canada Bay Council [2010] NSWCA 64 Tjiong v Tjiong [2012] NSWCA 201 Category: Principal judgment Parties: [NAME] (First Appellant) [NAME] ([NAME] Appellant) [COMPANY] (First Respondent) [NAME] ([NAME] Respondent) [COMPANY] (formerly known as [COMPANY]) (Third Respondent) Representation: Counsel: [redacted] M [NAME] ([NAME]) K [NAME] SC with [NAME] ([COMPANY]) J [NAME] with [NAME] as Amicus Curiae Solicitors: [redacted] MacGillivrays Solicitors ([COMPANY]) [NAME] ([NAME]) [NAME] ([COMPANY]) File Number(s): CA 2012/81298 Decision under appeal Citation: [2011] NSWSC 1202 Date of Decision: 2011-10-14 00:00:00 Before: Hislop J File Number(s): 2007/263386

Judgment 1THE COURT: [NAME], appeal from a judgment of Hislop J in which his Honour made an order for possession with respect to [NAME]' family home due to their default in the repayment of a loan secured upon that house. However, the present case differs from many cases of a similar type where parents of senior years have mortgaged their home as guarantors of a loan made to their adult children so that they have not received any benefit therefrom. In the present case, the relevant loan in respect of which [NAME] defaulted was one from which they benefited as borrowers rather than as guarantors: cf Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 at [216]-[217] per Basten JA.

The basic background facts 2The [NAME] are husband and wife and as at December 2004 were the owners of adjoining townhouses at Smithfield being Lots 1 and 2 in Strata Plan 63720 ("Lots 1 and 2"). Those lots were part of a larger property ("the Smithfield property") purchased by [NAME] in 1991 upon which they ultimately constructed five two-storey townhouses, three of which they sold. The other two, being Lots 1 and 2, they retained. Lot 2 was held as an investment property. They lived in Lot 1 together with two of their children (who are now adults) who suffer from schizophrenia. As at December 2004, Lots 1 and 2 were subject to a mortgage registered in the name of [COMPANY] ("[NAME]") but funded by [COMPANY] (Australia) Ltd ("ING"). 3The [NAME] and their eldest [NAME] also owned a parcel of land in [NAME], Cabramatta ("[NAME]") which comprised two allotments, Nos 22 and 24 [NAME], being the land in Folio Identifiers A/399641 and B/399641. [NAME] was a development site in respect of which [NAME] obtained a development consent which they were apparently unable to implement. As at December 2004, [NAME] was mortgaged to [NAME] to secure the sum of $850,000. 4On 16 December 2004, [NAME] made a loan application essentially to refinance the loan secured on Lots 1 and 2 funded by ING. The application was made to the third respondent, [COMPANY] (now known as [COMPANY]) ("[NAME]"), a mortgage sub-originator. The application was signed by [NAME] and witnessed by the [NAME] respondent, [NAME], who, according to his evidence, was a contractor to [NAME]. 5Premier forwarded the loan application to the fourth respondent, [COMPANY] ("[NAME]"), a mortgage manager appointed by the first respondent, the [COMPANY] ("[COMPANY]") to, amongst other things, assess loan applications and then make a recommendation as to whether or not the application should be approved. [NAME] traded as [NAME] until November 2004 when it commenced to trade as [NAME]. [NAME] recommended to [COMPANY] that a loan of $867,000 secured by first mortgage over Lots 1 and 2 be approved. [COMPANY] accepted that recommendation and the loan monies were advanced on 18 January 2005 ("[COMPANY]'s loan"). They were dispersed by the payment to ING of $751,335.01 to discharge its mortgage over Lots 1 and 2 and, after deduction of various legal fees and expenses including lenders mortgage insurance of $16,173.49, the transfer of the balance of $94,636.69 to [NAME]' account with the [COMPANY] in the business name of Renato's Building Services ("[NAME]"). 6The [NAME] duly made the required repayments with respect to [COMPANY]'s loan until default occurred on 22 February 2007. On 2 October 2007 [COMPANY] filed a Statement of Claim seeking an order for possession of Lots 1 and 2 and judgment against [NAME] for $892,318.79 being the amount of the loan monies then due and owing under the mortgage together with interest. 7It is unnecessary to relate the details of the various interlocutory applications which then occurred except to note that on 31 July 2008, [COMPANY] obtained summary judgment for possession of Lots 1 and 2 and for monies owing plus interest. That judgment was set aside in respect of Lot 1 only on 28 October 2008. [NAME] did not seek to set aside the summary judgment or the order for possession in relation to Lot 2 which was held by them as an investment property. Their concern was with Lot 1, which was their family home. Ultimately, Lot 2 was sold in December 2008 but the amount realised on sale was insufficient to discharge [COMPANY]'s loan. 8The [COMPANY] pursued its claim for possession of Lot 1 and outstanding monies by filing an Amended Statement of Claim on 12 December 2008. [NAME] defended the proceedings alleging unconscionable conduct and misrepresentations on the part of [NAME]. They also sought relief under various statutes including the Contracts Review Act 1980. 9Three cross-claims were filed. The first cross-claim was that of [NAME], the cross-defendants to which were [COMPANY], [NAME] and [NAME]. The [NAME] cross-claim was instituted by [COMPANY] and sought a contractual indemnity from [NAME] pursuant to the management agreement entered into between those two parties. The third cross-claim was filed by [NAME] and sought relief against [NAME] in the event that [COMPANY] obtained judgment against it. [NAME] did not appear and did not participate in the proceedings or the appeal. 10The proceedings were heard over nine days in May 2011. On 14 October 2011 the primary Judge, Hislop J, delivered a judgment in which he rejected [NAME]' defences to [COMPANY]'s claim and, as a consequence, refused the relief sought in each of the three cross-claims. His Honour therefore ordered that [COMPANY] have possession of Lot 1 and granted leave to issue a writ of possession in respect of that Lot, staying execution of the writ until 30 January 2012. That stay has been extended and is in force until the determination of the appeal. His Honour also entered a verdict and judgment in favour of the relevant cross-defendants on each of the cross-claims: Bendigo & [COMPANY] v [NAME] [2011] NSWSC 1202. 11The [NAME] now appeal against the order of the primary judge granting [COMPANY] possession of Lot 1. They do not appeal against the rejection by his Honour of the first cross-claim which they instituted against [COMPANY], [NAME] and [NAME]. 12Although [NAME] were represented by counsel at trial, they represented themselves on the hearing of the appeal. However, to assist the Court, on 11 February 2013 the President appointed counsel as amicus curiae. In this respect we received written and oral submissions from [NAME], who appeared with [NAME], which were most helpful to the Court's resolution of the appeal.

The notices of motion 13The [NAME] filed two notices of motion in effect returnable before this Court which were dealt with at the commencement of the hearing of the appeal. The first sought to join as respondents to the appeal [NAME], [COMPANY] (formerly [NAME]) and [NAME]. 14The [NAME] notice of motion sought the Court's leave to receive further evidence pursuant to s 75A(7) of the Supreme Court Act 1970. That evidence fell into two categories. The first was constituted by a series of medical reports relating to the health of the first appellant which were generated in 2008 and 2009. The [NAME] category was related to two reports by forensic document examiners being those of [NAME] of [COMPANY] dated 11 May 2012 and [NAME] dated 19 March 2013. Each of those reports was obtained by [NAME] for the purpose of establishing that their signatures on an application for a loan form dated 21 October 2005 and on a home loan contract dated 22 November 2005 with respect to [NAME] were forgeries. 15After hearing argument the Court ruled against the admission of the evidence sought to be led by [NAME], indicating that it would provide its reasons when it delivered its judgment on the other issues argued on the appeal. The reasons for rejecting the application to admit further evidence now follow.

The notice of motion to adduce fresh evidence 16As the present appeal is one from a judgment after a trial or hearing on the merits, s 75A(8) of the Supreme Court Act prohibits the Court from receiving further evidence except on "special grounds". The principles to be applied to determine whether such grounds exist were articulated by Clarke JA, with whom [NAME] agreed, in [NAME] v [COMPANY] (1994) 34 NSWLR 155 at 160 as follows: "(1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible." 17In [COMPANY] v [NAME] of Canada Bay Council [2010] NSWCA 64, Spigelman CJ at [10]-[22] and Campbell JA at [134]- [136] (Handley AJA relevantly agreeing with both their Honours) recognised that Clarke JA's tests in [NAME] were not intended to be exhaustive of what might constitute "special grounds" and that other considerations might well overwhelm the failure of one or other of those "conditions" in the particular circumstances. 18Campbell JA noted (at [136]) that s 75A(8) should not be approached on the basis that it confers a completely untrammelled discretion on the Court to receive further evidence whenever it can identify "special grounds". His Honour then stated that the sub-section should be approached on the basis that the three [NAME] tests are usually applied, though there can be circumstances in which the balancing of the demands of justice and the public interest in bringing suits to a final conclusion comes down on the side of allowing a particular item of further evidence to be received notwithstanding that it does not comply with one or more of those tests. 19The requirement of "special grounds" in s 75A(8) was also the subject of discussion by Meagher JA (with whom [NAME] agreed) in Tjiong v Tjiong [2012] NSWCA 201 (at [165]-[169]). His Honour observed (at [165]) that to justify the exercise of the power under s 75A(8), the circumstances: "must be sufficiently out of the ordinary or exceptional to answer the description 'special grounds'." Meagher JA returned to the topic in Hammond v JP Morgan Trust Australia Ltd [2012] NSWCA 295 at [24] where, with the agreement of Basten JA and Bergin CJ in Eq, his Honour considered that "special grounds" were made out notwithstanding that the evidence sought to be tendered was available at the time of trial, but was not tendered because the appellant was neither present nor represented. In the present case, [NAME] were legally represented at trial by counsel. 20At trial, the mental health of the first appellant was the subject of evidence given by him. It is referred to by the primary judge at [35] of his reasons. The [NAME] appellant also gave evidence on the issue (see at [36]). However, no attempt was made by [NAME]' counsel at trial to tender any of the medical reports which it is now sought to tender and which, as we have indicated, are dated in 2008 and 2009 and therefore pre-dated the hearing at first instance by some two years. Nevertheless, after the evidence had closed an attempt was made by [NAME]' then counsel to tender the medical reports. That application was opposed on a number of grounds, not the least of which was that it was too late and would require an adjournment of the trial to enable [COMPANY] and the other parties to obtain their own evidence as to the first appellant's mental health. After hearing extensive argument, his Honour declined to [NAME] leave for the medical reports to be tendered. He stated that he would provide written reasons for that ruling when giving his substantive judgment "if required to by the parties". It would appear that none of the parties required him to provide those reasons which, we infer, would have indicated his Honour's acceptance of the arguments opposing the admission of the medical reports. 21It follows from the foregoing that the evidence now sought to be tendered was available at the time of the hearing and was in fact tendered but rejected. However, as will appear, his Honour's rejection of that evidence formed a number of the grounds of appeal. 22There could be no issue as to the credibility of the expressions of opinion contained in the reports now sought to be tendered. But there is a real issue as whether it could be said that there was a high degree of probability that, had they been admitted, they would have changed the outcome of the proceedings. Our consideration of the relevant reports indicates that as at 2008 the first appellant was suffering either from schizophrenia or paranoid delusions or both. However, one thing the evidence did not establish was that the first appellant was suffering from some relevant mental condition as at December 2004 which would have prevented him from appreciating that he and his wife were refinancing their loan on Lots 1 and 2 with [COMPANY]. In these circumstances, the tender of the evidence could not, in our view, have had any relevant impact upon the outcome of the proceedings so far as the events of December 2004 and January 2005 with respect to the entering into the mortgage over Lots 1 and 2 with [COMPANY] were concerned. 23As to the two reports of the forensic document examiners, the primary judge adverted at [56] of his reasons, when dealing with the refinancing in October 2005 of the then existing loan on [NAME], to the fact that despite evidence being sought from a handwriting expert with respect to the application for that loan, no handwriting evidence was in fact adduced. In this respect, as we have indicated, [NAME]' challenge to the genuineness of their signatures on the loan application form and the loan contract with respect to the [NAME] refinancing could only be relevant to [NAME]' credit as the present proceedings did not relate to [NAME]' default under that loan. It would appear from his Honour's remarks to which we have referred that an effort was made to obtain a report of a handwriting expert with respect to the signatures on the documents in question but without success. However, no reason was advanced as to the cause of that lack of success.

Accordingly, by the exercise of due diligence, the evidence which it is now sought to tender on this issue could have been made available at the time of trial. The first [NAME] condition is not satisfied. 24In any event, the issue concerning the genuineness of [NAME]' signatures to the documents relating to the [NAME] loan was collateral to [COMPANY]'s proceedings with respect to [NAME]' default under [COMPANY]'s loan. Further, the reports in question are of little assistance to [NAME]. [NAME] had only been provided with copies rather than the originals of the documents in question and, therefore, stated that it was not possible to make any determination about the authenticity of the challenged signatures. However, he did observe that: "The only pertinent observation that can be made is that the respective signatures have a level of pictorial similarity to the respective specimen signatures." an observation which is of no assistance to [NAME]' case on this issue. 25Mr [NAME] was similarly handicapped by not having access to the original documents. He concluded that no determination could be made as to whether or not the challenged signatures on the loan application form had been transferred or reproduced from another document. So far as the signatures on the loan contract were concerned, he concluded that the first signature purporting to be that of the first appellant was probably genuine, although that purporting to be that of the [NAME] appellant was very probably not genuine. Nevertheless, each opinion was qualified due to the absence of the original documents. 26In the foregoing circumstances it was our opinion that in respect of both the medical reports as well as the forensic document examiner reports [NAME] had not made out a case of "special grounds" which would have justified the receipt of those reports on the hearing of the appeal.

Accordingly, the application of [NAME] that we receive that evidence was refused.

The notice of motion to join parties 27The [NAME] filed a further notice of motion two days before the commencement of the hearing of the appeal seeking to join [NAME], [COMPANY] (formerly [NAME]) and [NAME] as respondents. Service of the notice of motion upon [COMPANY] was proven, but as it did not appear the Court ordered that it be joined as a respondent. However, as was the case at trial, it took no part in the hearing of the appeal. In any event, whatever the outcome of the appeal, the failure to file an appeal against the dismissal of the first cross-claim had the consequence that [NAME] would not be entitled to any relief against that party. 28Although he first objected to being joined at such a late stage of the appeal, [NAME] ultimately consented to being joined and was represented by [NAME], who made oral submissions to support the primary judge's findings with respect to his client. [NAME] objected to being joined and the Court upheld that objection, indicating that it would provide its reasons in this judgment. In this respect it was assisted by the submissions of [NAME] of Senior Counsel, who appeared on behalf of [NAME]. Her submissions may be summarised thus: (a) [NAME] was not the subject of any cross-claim against it instituted by [NAME]; (b) Rather, it was only a cross-defendant to the [NAME] cross-claim brought by [COMPANY]; (c) [COMPANY] had not cross-appealed against the dismissal of that cross-claim; (d) The issue raised by [NAME] with respect to [NAME] related to certain events in a [NAME] in Earlwood in late 2005 which did not concern the loan which was the subject of [COMPANY]'s mortgage over Lot 1 and which was the only transaction with which [COMPANY]'s proceedings and the cross-claims (including the first cross-claim instituted by [NAME]) were concerned; (e) The Earlwood incident which related to the refinancing of [NAME] was raised by [NAME] in order to support an adverse credit finding with respect to [NAME]. It did not purport to reflect upon, or be relevant to, any conduct of [NAME]. 29In our opinion, there was much force in the foregoing submissions. In particular, [NAME] had only been made a cross-defendant to the [NAME] cross-claim instituted by [COMPANY] seeking a contractual indemnity. [NAME] instituted the third cross-claim against [NAME], the lack of success on the part of [NAME] at trial rendered both cross-claims academic. In our opinion there was no justification for the joinder of [NAME] and we declined to do so. 30We turn now to the merits of the appeal.

The background facts in greater detail 31The first appellant was born in Italy in 1944. After attending primary school for about two years he commenced work in the [NAME]. He migrated to Australia in 1966 aged 22 years and found work in that industry. It would appear that he ultimately conducted his own building operation under the name [NAME]. In 1989 he seriously injured his back and neck, as a result of which he has not been able to work in the [NAME] since. However, as will appear, he pursued a number of other enterprises. Nevertheless, as his Honour noted (at [19]), he gave evidence that after his injury he became depressed and understood that a diagnosis of schizophrenia had been made. He was under medical care for that condition and took antipsychotic medication. He was in receipt of a pension. That notwithstanding, since his injury he has dealt in real estate and [NAME] and conducted a business selling coins, banknotes and cars on [NAME]. 32The [NAME] appellant was born in Italy in 1954. She migrated to Australia with her parents when eight years of age. She completed an apprenticeship as a hairdresser, an occupation she followed for most of her working life up until 1989 when she ceased paid employment in order to care for her family. 33The [NAME] had three children born in 1972, 1975 and 1979 respectively. The eldest is married to [NAME]. The [NAME] and third children suffer from schizophrenia and at all material times have resided with their parents. Presumably they are in receipt of disability pensions. 34At [23] of his reasons, the primary judge set out a summary of [NAME]' property dealings prior to December 2004. They purchased their first property at [ADDRESS], Punchbowl in 1971. It apparently became the family home. Over the years they purchased a number of investment properties. The first was in 1985 when they acquired a property at [ADDRESS], Yagoona. In 1989, they purchased a property at [ADDRESS], Georges Hall. In 1990, they sold the property at [ADDRESS] for more than double what they had paid for it five years earlier. In 1991, they purchased the Smithfield property as their [NAME] investment property. As noted at [2] above, they developed that property with five two-storey townhouses. The strata plan of subdivision was registered on 31 October 2000. As we have indicated, [NAME] sold three of the townhouses, retained that erected upon Lot 2 as an investment and lived in that erected upon Lot 1. 35In October 2001 [NAME] purchased their third investment property at [ADDRESS], [ADDRESS] for $200,000. It was sold in February 2003 for $573,400. 36Their fourth and final investment property was purchased on 20 February 2003 being [NAME]. It was originally mortgaged to [COMPANY], the mortgage being signed by [NAME] and witnessed by their solicitor, [NAME]. 37All the properties purchased by [NAME] to which reference is made above were the subject of mortgages. A number of refinancing transactions occurred with respect to those properties. It would be fair to say, and the primary judge found, that [NAME] were very familiar with the buying and selling of property including the mortgaging thereof and the necessity of refinancing the loans secured on those properties from time to time. 38As we have noted, [NAME] was originally mortgaged to [COMPANY]. On 10 June 2003 that mortgage was discharged and [NAME] was mortgaged to [NAME] to secure a loan of $850,000 funded by ING. At about the same time the existing mortgage to [COMPANY] over the Smithfield property was discharged and a mortgage to [NAME] to secure $750,000 funded by ING was entered into. Each of those mortgages to [NAME] was signed by [NAME] and witnessed by a finance broker, [NAME]. [NAME] had nothing to do with the obtaining of the loans secured by those mortgages. 39As at December 2004 if not before, it was apparent that [NAME] were in serious financial trouble. At [71] of his reasons the primary judge noted that the first appellant gave evidence that he told [NAME] that he was in financial trouble, that he was a pensioner, had no income and was struggling to sell [NAME]. [NAME] denied that he was so informed by the first appellant. According to the primary judge (at [72]), [NAME]' evidence was that the first appellant had told him that he was a successful builder. Furthermore, he was unaware that the first appellant had any health problems and had been informed by him that he had made a large profit for the taxation years 2003 and 2004 and that he wanted additional money to invest in the share market. He allegedly informed [NAME] that the [NAME] was in good shape, there was plenty of work and he made good money from trading on [NAME] and the [NAME]. 40The primary judge's findings with respect to the first appellant's financial acumen are to be found at [49] and [50] of his reasons. His Honour regarded it as apparent from the number and type of property dealings by [NAME] that they were experienced in respect of the purchase and financing of real estate. They understood the nature of a loan application and a loan contract. They had received the advice of a solicitor ([NAME]) in relation to transactions of this kind on many previous occasions. His Honour found that [NAME] were well aware that in the event of default under a mortgage, judgment for possession of the secured property could be obtained by the [NAME] and the property sold. 41His Honour also found that the first appellant had experience in the development of building sites as a result of the development of the Smithfield property and the proposed development of [NAME]. It had been [NAME]' intention to continue to buy and develop land. The first appellant also had experience in conducting a trading business on [NAME] with respect to coins and had also traded on the [NAME] where he allegedly had a turnover of $31 million in the 2004 taxation year. 42As we have already noted (at [4] above), on 16 December 2004 [NAME] signed a loan application to refinance the mortgage to [NAME] secured upon Lots 1 and 2. That application was accepted as a consequence of which they signed a home loan contract as well as the mortgage documents to secure a loan of $867,000 from [COMPANY]. At [27] of his reasons the primary judge noted that [NAME] conceded that they signed the loan application, loan agreement and mortgage over those properties. Their signatures were witnessed by [NAME]. They also accepted that they were in default under that mortgage. As we have noted (at [5] above), after discharging the existing mortgage over Lots 1 and 2 and after the deduction of various expenses including lenders mortgage insurance, a balance of $94,636.69 was transferred to [NAME]' [COMPANY] account which was in their business name of [NAME]. That amount was then available to [NAME] to service [COMPANY]'s loan as well as the existing loan secured over [NAME]. 43As the primary judge noted (at [29]), [NAME]' case in their defence of [COMPANY]'s claim for possession of Lot 1 was centred upon an attack on the credit of [NAME]. He observed (at [30]) that [NAME] alleged that they were taken advantage of by [NAME] as a result of which they entered into a mortgage with [COMPANY] which was not in their best interests and too, that they did so without legal advice. It was further alleged that [NAME], without the knowledge of [NAME], obtained and lodged false taxation returns with the loan application and entered false information into that application but for which it would have been refused. It was submitted that [NAME] was not a credible witness and that when there was a conflict in the evidence, that of [NAME] should be preferred to that of [NAME].

The primary judge's findings 44As noted by his Honour (at [31]), the alleged disadvantage under which [NAME] were suffering in their dealings with [NAME] was due first, to their lack of education, reasoning ability and financial know-how; secondly, an inability on the part of the first appellant to read or write English; thirdly, the fact that the first appellant suffered a psychiatric condition; fourthly, the absence of advice from a solicitor as to the wisdom of entering into the subject mortgage; and, fifthly, the relationship of trust fostered by [NAME] which he had breached. 45The primary judge dealt with each of these allegations in turn. His findings may be summarised thus: (a) There was no issue as to the [NAME] appellant's ability to read and write English. So far as the first appellant was concerned, he was clearly intelligent and advanced himself in Australia, initially in the [NAME] and after his injury, in property development and ultimately in [NAME]. He could read English at the time of trial and could also do so in 2004. Relevantly, no ground for relief was pleaded in [NAME]' defence to [COMPANY]'s Amended Statement of Claim based on the first appellant's inability to read or write English. Finally, it was only after some time in cross-examination that he asserted that he could not read English. He could certainly speak it. (b) As to the first appellant's psychiatric condition, his Honour noted first, that the [NAME] appellant had given evidence that her husband seemed entirely capable of making decisions as to which properties to buy and sell and as to which were the best loans to take and that she had confidence in his capacity to identify properties to buy. Secondly, the proceedings were conducted without resort to any medical evidence. As already recorded, his Honour had noted that an application by their counsel after the evidence was otherwise complete to tender some medical reports dated 2008 was refused. Thirdly, the first appellant's involvement in business and financial matters did not suggest that his financial dealings were affected by any psychiatric condition. Fourthly, [NAME], the solicitor who had acted for [NAME] on a number of property transactions, was not called to give evidence to suggest that the first appellant had any difficulty in understanding the financial transactions into which he had been entering. Fifthly, it had therefore not been established that the first appellant's involvement in relation to the subject mortgage had been adversely affectedly by any psychiatric condition. (c) The first appellant gave evidence that at their first meeting in 2004 [NAME] told him that he was like a father to him and that this was repeated on other occasions. It was alleged that this gave rise to a relationship of undue influence between [NAME] and the first appellant which led to [NAME] not retaining a solicitor, and entering into the mortgage with [COMPANY] upon conditions which they were unable to meet. The primary judge rejected that evidence, noting that their counsel described the first appellant as "an extremely strong-willed person". Although not referred to by his Honour, counsel for [NAME] also described the first appellant as having "very high self esteem". (d) Of some significance was the submission to his Honour by [NAME]' counsel that the [NAME] appellant considered that her husband was a very clever businessman who was managing to buy and sell properties and to make profits. That indeed was the case as they had a couple of very good investments which caused their net worth to increase substantially. However, they then invested in [NAME]. Before that property could be developed the economic conditions changed as a consequence of the GFC which reduced property values and resulted, according to counsel, in [NAME] "having to continuously re-finance", they being victims of the property downturn. (e) Although both [NAME] gave evidence that they always signed mortgages in front of their solicitor, when shown mortgages which they had signed before persons other than solicitors, they were forced to concede that their evidence was incorrect. So far as the subject transaction was concerned, [NAME] denied that [NAME] said that they wanted a solicitor to look over and check the documents. He said that he offered them that opportunity on more than one occasion but they declined it, notwithstanding that the first appellant agreed that he could call on his solicitor, [NAME], to get advice if needed. Furthermore, as will appear, they retained [NAME] in respect of the refinancing of [NAME] at the end of 2005.

Accordingly, there was no acceptable evidence that involvement of a solicitor for [NAME] would have resulted in [COMPANY]'s loan and mortgage proceeding otherwise than as they did. In this respect, it was not suggested that there was any problem with the documents or that the terms of the loan contract and mortgage were other than what would normally be expected. 46The primary judge then turned to the issue of [NAME]' credit, which was attacked on a number of fronts. His Honour set out (at [52]) six matters which, it was asserted, either taken individually or together, reflected adversely on [NAME]' credit. It is sufficient to note that first, two of those matters involved typographical errors in [NAME]' affidavit and that at least two of the other items were explicable for reasons which it is unnecessary to relate. Suffice it to say that the primary judge formed the opinion (at [53]) that those items did not affect [NAME]' credit in any significant manner. Secondly, apart from the refinancing of the [NAME] loan at the end of 2005, the only other matter directed to [NAME]' credit related to his filling out of an application for the first appellant for a personal loan, in relation to which he indicated that he was unaware that it was to be a loan from [COMPANY]. However, in cross-examination he accepted that he accompanied the first appellant to the offices of that [COMPANY] when making the application. His Honour stated (at [61]) that there was no explanation for that apparent change in his evidence on that subject.

The [NAME] 2005 transaction 47The issue relating to this transaction seemed to assume greater significance from [NAME]' perspective on the hearing of the appeal than it did at trial. On 10 June 2003 two mortgages were entered into in favour of [NAME]. The first related to Folio Identifier No A/399641, being the property known as 24 [NAME], Cabramatta. The mortgagors were [NAME]. The [NAME] mortgage of the same date in favour of the same mortgagee was secured over Folio Identifier No B/399641, being the property known as 22 [NAME], Cabramatta. The mortgagors were shown as [NAME] and [NAME]' eldest [NAME]. As is apparent, [NAME] were the registered proprietors of 24 [NAME] whereas their [NAME] were the registered proprietors of 22 [NAME]. Hence the necessity for two mortgages. Nevertheless, the mortgages were interrelated and the two loan agreements (one for each property) in the sum of $616,000 and $234,000 respectively, totalled $850,000. 48At some point in 2005 it became necessary for [NAME] to refinance the existing loan over [NAME]. The evidence of [NAME] and a finance broker, [NAME], who had some relationship with [NAME], was that they met [NAME] on 21 October 2005 at a [NAME] in Earlwood. The evidence regarding the conversation between [NAME] and the first appellant is recorded by the primary judge (at [55]). As his Honour there noted, that evidence was generally confirmed by [NAME]. The loan application purportedly signed by [NAME] on 21 October 2005 was tendered. Their signatures were witnessed by [NAME]. 49The [NAME] denied that they had ever been at the [NAME] or that they had ever met [NAME]. They maintained that the signatures on the loan application form were not theirs. It was in that context that his Honour stated (at [56]) that it was: "notable that despite evidence being sought from a handwriting expert, no handwriting evidence was adduced." 50The primary judge also noted that, when cross-examined, the [NAME] appellant stated that her assertion that she had not signed the document was based upon the fact that she did not know [NAME] and had not been to the [NAME]. However, the primary judge observed that it was not put to [NAME] that the alleged signatures of [NAME] were forged. Nor was he cross-examined as to the evidence of the conversation between him and the first appellant recorded by his Honour (at [55]) which, as we have indicated, was generally confirmed (according to the primary judge) by [NAME]. 51The primary judge's finding with respect to this issue was in the following terms: "57 The [[NAME]'] denial of a meeting at a [NAME] in Earlwood appeared convincing and I accept they genuinely believe that to be the case. However, it would be unnecessary for [NAME] to invent such a meeting and it is not apparent why he and [NAME] would lie on this issue. The [[NAME]] may be simply mistaken. I am unable to determine the truth of this issue." 52Although it was no part of their case at trial, [NAME] maintained on the appeal that the refinancing of the [NAME] loan had taken place at the end of 2004 at the same time as they had refinanced the loan on Lots 1 and 2. They denied that the refinancing of [NAME] took place at the end of 2005. They did accept that it was part of the refinancing arrangement in relation to [NAME] that their [NAME] would transfer their estate and interest in 22 [NAME] to them. Such a transfer in fact took place on 21 December 2005, it being noted that the consideration for the transfer was $280,000. The transfer was signed by both the transferors and the transferees. In each case their signatures were witnessed by [NAME] and on the same day a discharge of the mortgage to [NAME] in respect of each of 22 and 24 [NAME] was executed and dated 21 December 2005. On the same date, a mortgage over both properties was executed by [NAME] in favour of [COMPANY]. Their signatures were witnessed by [NAME]. 53There could be no doubt that [NAME] were fully aware of the refinancing of [NAME] in December 2005. By letter dated 22 December 2005 [NAME] wrote a letter to [NAME] headed: "RE: DISCHARGE OF MORTGAGE TO ING WITH [COMPANY]: 22 & 24 [NAME], CABRAMATTA" The letter contained the following statements: "We refer to settlement of your refinancing and enclose Statement of Account, Trust Statement and Tax Invoices. As instructed we have banked the balance settlement monies of $40,611.38 in your [NAME] account." 54Included amongst the documents signed by [NAME] and forwarded to the solicitors for [COMPANY] by [NAME] was a home loan contract dated 22 November 2005. In the foregoing circumstances there could be no doubt that [NAME] were fully aware that the transfer to them of 22 [NAME] took place at the same time as the existing mortgages over the two [NAME] properties were discharged and a new mortgage over both properties in the name of [NAME] entered into with [COMPANY]. It is clear that the whole transaction was undertaken by their solicitor, [NAME]. As noted above, [NAME] was not called to give evidence.

The double mortgage issue 55It is convenient at this point to refer to a submission made by [NAME] on the appeal relating to what they referred to as a "double mortgage". [NAME] at some point attended the Office of Land and Property Information and were given two copies of [COMPANY]'s mortgage over Lots 1 and 2. In an email to the Court of Appeal Registrar received after the hearing concluded [NAME] forwarded a copy of what they asserted were the "double mortgages" they had received from that office. Although not forming part of their grounds of appeal, as [NAME] were unrepresented, it is appropriate to refer to these documents. They were relied on only to support [NAME]' assertion that the refinancing of [NAME] took place in 2004 at the same time as the refinancing of Lots 1 and 2 so that the existence of the mortgage over [NAME] in favour of [COMPANY] dated 21 December 2005 must be a fake, resulting in them making payments under two mortgages upon the same property when they should only have been making payments in respect of one mortgage. 56As we have already observed, the separate mortgages in favour of [NAME] over each of 22 and 24 [NAME] which were refinanced in 2005 were originally executed on 10 June 2003. Those mortgages were not discharged until 21 December 2005 when, as we have explained, the refinancing of [NAME] took place (and 22 [NAME] was transferred from the Wolfes to [NAME]) which was handled on behalf of [NAME] by their solicitor, [NAME]. Although there were separate mortgages over 22 and 24 [NAME] when they had different registered proprietors, after the transfer of 22 [NAME] to [NAME], only one mortgage was entered into by [NAME] secured to [COMPANY] over both [NAME] properties. 57Lots 1 and 2 were also mortgaged to [NAME] in June 2003. They were refinanced in December 2004. The mortgage in favour of [COMPANY] signed by [NAME] and witnessed by [NAME] was dated 18 January 2005. 58The documents forwarded to the Registrar by [NAME] and asserted to be "double mortgages" were, in fact, two copies of the same mortgage, being that in favour of [COMPANY] over those properties. There was only ever one mortgage in favour of [COMPANY] over Lots 1 and 2.

Accordingly, [NAME] have never paid monies under any "fake" mortgage. They may have been confused by receiving two copies of the same document from the Land and Property Information Office. Their misunderstanding seems to have arisen from the fact that each of the documents received by them from Land and Property Information was reproduced at a different time - one at 12.39 pm and the other at 12.57 pm. However, there is no doubt that each is a copy of the same mortgage. Their complaint of, in effect, having been hoodwinked when they entered into that mortgage arose from their apparent inability to appreciate that the documents were the same.

The findings of the primary judge with respect to the refinancing of Lots 1 and 2 59As we have already observed, the loan application which ultimately led to the mortgage in favour of [COMPANY] was signed by [NAME], whose signatures were witnessed by [NAME]. The primary judge noted (at [71]) that the first appellant gave evidence that he told [NAME] in 2004 that he was in serious financial trouble, that he was a pensioner, had no income and was struggling to sell [NAME]. It was asserted that notwithstanding this information, [NAME] obtained a loan for [NAME] from [COMPANY] knowing that they had minimal income and in circumstances where he knew that they would be unable to service the proposed loan. In this context his Honour recorded (at [69]) that it was common ground that the value of the assets and earnings of [NAME] stated in the loan application were inflated. [NAME] asserted that this was done by [NAME] without their knowledge. [NAME]' evidence was that all the information was provided by [NAME]. [ADDRESS] was informed that the assets that were said to be overvalued were two motor vehicles the combined value of which was stated to be $141,000, furniture of $30,000 and a boat of $47,000. 60Of greater significance were the tax returns of each of [NAME] which accompanied the loan application. That of the first appellant revealed a net pre-tax income for the financial year ending 30 June 2003 of $143,574 and a net pre-tax income for the financial year ending 30 June 2004 of $150,976. The same returns, his Honour noted (at [87]), were relied upon in respect of the 2005 loan in relation to [NAME]. The returns were ostensibly prepared by an accountant, [NAME], trading as [COMPANY], as his Honour observed (at [92]-[93]), [NAME] gave evidence that their accountant in 2002 was a [NAME] of [NAME] and, in 2003, was a [NAME]. There was evidence that [NAME]' taxation returns for 2002 were prepared and lodged with the Australian Taxation Office by [NAME], who then traded as [COMPANY]. His Honour noted that there was no independent objective evidence linking either [NAME] or [NAME] to the origin of the tax returns which accompanied the subject loan application. 61It is unnecessary to refer to all of the findings of the primary judge on this issue. Suffice it to say that his Honour determined that it had not been proved by [NAME] that [NAME] was responsible for the preparation of either the false loan application or the taxation returns. With respect to the latter, his Honour noted (at [88]) first, that the false tax returns had been signed by [NAME] and, secondly (at [89]), that it was [NAME]' evidence that the returns were given to him in an envelope by the first appellant outside [NAME]' home. His Honour made no specific finding on this matter, but referred (at [90]) to the evidence of the [NAME] appellant that she had seen her husband hand an envelope to [NAME] on that occasion, although she was unsure of its contents. The first appellant agreed that he had handed an envelope to [NAME], but said it contained $6000 in cash which [NAME] had required from him in order to lodge the loan application. We refer to the latter contention below. 62Mr [NAME]' evidence, accepted by the primary judge, was that in 2004 he was employed by [NAME] as a contractor for a flat fee of $7500 per calendar month and that his income was not linked to the value of loans that he, or brokers under his guidance, had submitted for approval. No evidence was adduced to suggest that [NAME] received commissions over and above that fee. 63The first appellant asserted on the other hand that [NAME] had a financial interest in obtaining [COMPANY]'s loan as he had demanded a cash payment of $6000 to process the application and had made similar demands on three other occasions in respect of other loans. His evidence was that in all he had provided [NAME] with $24,000 in cash in four lots of $6000 drawn from [NAME]' [COMPANY] account. However, when their [COMPANY] records were produced, the first appellant was only able to point to one withdrawal of $6000 which occurred in April 2004, well before the subject loan application form was completed in December of that year.

Accordingly, his Honour declined (at [78]) to accept that [NAME] had established that they had given [NAME] an amount of $6000 in order to process their loan application for Lots 1 and 2 or any other amounts of $6000 for other loans. 64The primary judge's ultimate finding with respect to [NAME] was encapsulated in the following paragraph of his reasons: "108 In my opinion, on the evidence before me, [NAME]' version of events appears the more likely. [NAME] gave evidence he received no financial benefit in processing the loan application by the defendants. The contrary was not established. The defendants' attempt to establish that the first defendant had paid [NAME] four amounts of $6000.00 cash to process this and other loans could not be established from [COMPANY] records. It is improbable that with no financial incentive [NAME] would have engaged in falsifying the application form and obtaining and submitting false taxation returns. [NAME] may have wanted to assist his friend and business colleague [NAME] but to come to Court and perjure himself for that purpose is not to be lightly inferred. [NAME] has been discussed earlier. There is no apparent reason for him to lie." 65His Honour nevertheless accepted (at [104]) that there were major conflicts in the evidence. He observed that [NAME]' case was essentially that from 2003 they were in financial difficulties which increased and which they knew in all probability would continue to increase until [NAME] was sold.

Accordingly, in order to survive financially it was necessary for them to obtain additional funds. His Honour found (at [105]) that [NAME] determined that this was to be achieved by refinancing the loan over Lots 1 and 2 so as to obtain additional funds after the repayment of the existing loan together with expenses. This was a legitimate business decision provided the excess was sufficient to enable the mortgage to be paid for a reasonable period in which continued efforts to sell [NAME] could be made. [NAME] received some $94,000 to enable this objective to be achieved, his Honour finding (at [111]) that they used that money to meet their repayments. As default under [COMPANY]'s loan did not occur until over two years later, [NAME] thus gained the additional time intended notwithstanding that [NAME] remained unsold. 66It was in the foregoing context that his Honour accepted the evidence of [NAME] that the first appellant represented himself as a successful builder who also made money on the [NAME] and on [NAME] and, further, that [NAME] were refinancing in order to raise additional funds for the latter activities. His Honour also accepted (at [107]) that [NAME] provided the relevant information which [NAME] inserted into the loan application form and supplied the taxation returns which accompanied that application.

Accordingly, the primary judge accepted the evidence of [NAME] and rejected that of the first appellant.

The grounds of appeal 67The final Amended Notice of Appeal was filed on 12 March 2013. Ultimately the following six grounds of appeal were pursued: "1. His Honour Judge HISLOP erred by failing to allow the defendants' MEDICAL RECORDS and thus in finding that the proceedings were conducted without any medical evidence, and in failing to find that the first defendant was relevantly affected by a psychiatric condition. (Paragraphs 38 & 39)

2. His Honour erred by failing to allow additional time to the parties to obtain and provide appropriate medical evidence and thus in failing to determine, after a proper hearing of the relevant evidence, whether the first defendant was relevantly affected by a psychiatric condition, and thus in failing to find that the first defendant was relevantly affected by a psychiatric condition. (Paragraphs 38 & 39)

3. His Honour erred by failing to conduct a hearing in relation to the defendants' medical conditions and thus in failing to determine, after a proper hearing of the relevant evidence, whether the first defendant was relevantly affected by a psychiatric condition, and thus: (a) in failing to find that the first defendant was relevantly affected by a psychiatric condition. (Paragraphs 38 & 39); and further (b) in failing to find that the first defendant was affected by a psychiatric condition; and thus (c) in failing to find that the first defendant's evidence was affected by his psychiatric condition and needed to be viewed in light of that condition; and thus (d) in accepting the evidence of [NAME] & [NAME], and rejecting the defendants' evidence (Refer to psychiatric condition of [NAME] - paragraph 35-39), (e) in failing to appoint appropriate representation for the defendants to ensure their interests were protected.

4. His Honour erred by failing to provide reasons for his decisions referred to above.

5. His Honour erred by failing, in deciding the above matters, to consider, or appropriately consider, or give due weight to, any medical records or any medical evidence already on the court file or otherwise available to the Court and the parties, including documents produced under subpoena, and thus (a) in failing to find that the first defendant was affected by a psychiatric condition; and thus (b) in failing to find that special circumstances existed to warrant an exception to be made to the rules of court; and further (c) in failing to find that the first defendant's evidence was affected by his psychiatric condition and needed to be viewed in light of that condition; and thus (d) in accepting the evidence of [NAME] & [NAME], and rejecting the defendants' evidence (Refer to perjured evidence by [NAME] & [NAME] 77,78,79,108.)

6. His Honour erred by failing to make a determination with respect to alleged meeting at a [NAME] in Earlwood in 2005 and thus accepted the evidence of [NAME] & [NAME] and rejected the evidence of the defendants.(paragraph 56). His Honour erred by not requesting and investigating the evidence on hand which was available and was not aware of the truth in this matter.(paragraph 57.)" 68Grounds 1, 2, 3 and 5 all relate to the issue of the first appellant's mental state at the time of the subject transaction. We have already dealt with [NAME]' attempt to tender the medical statements as fresh evidence on the appeal. His Honour made findings with respect to [NAME]' mental condition in the absence of those medical records the tender of which he had rejected. We have referred to his Honour's findings (at [20] and [45] above). On the basis of the evidence before him there can be no doubt that it was open to him to make the findings he did. In any event, for the reasons we have set out (at [22] above), the medical reports [NAME] attempted to tender as fresh evidence and which, they assert, his Honour should have accepted at trial, do not provide any evidence upon which it could be found that at the time of the subject transaction in December 2004 the first appellant was suffering from a mental condition which affected his ability to understand and appreciate what he was then doing. 69As to ground of appeal 4 we have already referred to the fact that his Honour rejected the tender of the evidence on the basis that he would give reasons in his substantive judgment if they were required. Although it would not appear that he was required to give such reasons, nevertheless his Honour stated (at [38]) that the proceedings were conducted by [NAME] without resort to any medical evidence until an application was made by their counsel, after the evidence was otherwise complete, to tender the 2008 reports. It is clear that the primary judge accepted the submissions of [COMPANY] that it was too late for those reports to be tendered after the evidence had closed, especially as it was conceded by [NAME]' counsel that their tender would necessitate an adjournment of the proceedings to enable the other parties to obtain their own medical evidence and for arrangements to be made for the authors of the reports to be available for cross-examination. His Honour rejected the tender on the [NAME] last day of the trial after six days of evidence in circumstances where bringing the trial to a conclusion was a matter of significance given the terms of s 56 of the Civil Procedure Act 2005. In our opinion, no error has been demonstrated either with respect to the reasons his Honour gave for rejecting the tender of the evidence or in the rejection of the tender itself. 70Ground of appeal 6 relates to the alleged meeting at the [NAME] in Earlwood in October 2005 concerning the refinancing of [NAME]. It was in effect submitted that his Honour should have accepted the evidence of [NAME] that they had not met [NAME] or signed a loan application with respect to the refinancing of that property at that [NAME]. His Honour considered (at [57]) that in the circumstances he was unable to determine whether or not such a meeting took place. It is noteworthy that his Honour did not make a finding that the loan application to refinance [NAME] was not signed by [NAME] on 21 October 2005. Whatever may be the position as to the signatures on that loan application form, it cannot be disputed that an application for a loan from [COMPANY] to refinance [NAME] was made at that time and that the loan transaction was successfully handled on behalf of [NAME] by their solicitor, [NAME]. 71As [NAME], as amicus curiae, submitted, whether or not a meeting took place at the [NAME] at Earlwood could only be relied upon by [NAME] to impugn [NAME]' credit with a view to underpinning a broader attack on his role in the obtaining of the 2004 loan from [COMPANY]. Nevertheless, his Honour was not prepared to make a positive finding that the meeting did not take place and the other attempts to impugn the credit of [NAME] were unsuccessful. In these circumstances, in our opinion ground of appeal 6 does not advance [NAME]' case. 72Insofar as it might be inferred from the grounds of appeal that [NAME] seek to challenge his Honour's acceptance of the evidence of [NAME] over that of [NAME] and of the first appellant in particular, the onus lay upon [NAME] to establish that the primary judge "failed to use or ... palpably misused his advantage" or acted on evidence which was "inconsistent with facts incontrovertibly established" or "glaringly improbable": Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 (at 479, 480-481); Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [26]-[29]); see also the discussion of the relevant principles in Baira v RHG Mortgage Corporation Limited [2012] NSWCA 387 (at [494]-[507]). The advantage enjoyed by the primary judge over this Court in seeing and hearing the witnesses must be given significant weight especially in the absence of any uncontested objective evidence which would justify reversing his Honour's credit findings with respect to [NAME]: Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2013] NSWCA 35 (at [13]-[14]) per Allsop P. 73In our opinion there was considerable objective evidence sufficient to justify the primary judge in rejecting the evidence of the first appellant and accepting the evidence of [NAME]. In particular, his Honour's resolution of the issues of the false taxation returns and the cash payments of $6000 allegedly made to [NAME] from [NAME]' [COMPANY] account were of themselves significant findings which militated against acceptance of the first appellant's evidence. Furthermore, it was acknowledged by their counsel in final address that the first appellant was "obviously in dire financial difficulty" at the time he sought to refinance the loan secured upon Lots 1 and 2 and, for that matter, that secured on [NAME]. 74It was thus necessary for the first appellant to present a case to [NAME] relating to his financial position that would justify the making of a loan application which was likely to be approved. He had no chance of obtaining a loan if he informed [NAME] of his true financial position unless [NAME], in conjunction with the first appellant, was prepared to commit a fraud upon [COMPANY]. The primary judge accepted that the picture which the first appellant painted to [NAME] as to his financial position was far more rosy than was the case and also accepted [NAME]' evidence that he was unaware of the dire financial difficulties which in fact [NAME] were in at the time. [NAME]' evidence that he did not receive a commission on any loans that he wrote was accepted, it followed that [NAME] had no motive for advancing a fraudulent loan application to [COMPANY]. 75Finally, as observed at the commencement of these reasons, the present case is not one where elderly parents have been persuaded to mortgage their home, and often their only asset, for the sole benefit of their adult children. The loan applications with respect to Lots 1 and 2 in December 2004 and to [NAME] in October 2005 were entered into by [NAME] purely for their own benefit. Given the financial position that they were in, each of those loans generated sufficient surplus funds after the repayment of the existing mortgages to enable [NAME] to meet their commitments and thus provided further time within which to sell [NAME] which, had it occurred, would have solved or gone a long way to solving their financial difficulties. 76In our opinion [NAME] have not discharged the onus of establishing that his Honour's findings as to the credit of [NAME] were either inconsistent with facts incontrovertibly established or glaringly improbable. In our view, if anything, his evidence was, in the circumstances, glaringly probable.

Conclusion 77Notwithstanding the limited grounds of appeal, we have dealt with all the arguments advanced by [NAME] on the hearing of the appeal even though many of those arguments were not the subject of submissions to the primary judge. We have so proceeded in order that [NAME] may be satisfied that all matters that they have complained about to this Court have been the subject of careful consideration and determination. 78However, the challenges made by [NAME] to the findings of the primary judge have been unsuccessful.

Accordingly, the order of the Court is that the appeal be dismissed with costs.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 May 2013