Adeeb v Alali [2013] NSWSC 312

The alleged lender commenced proceedings seeking a declaration that a loan was valid, and the extension of a caveat.

The alleged lender sought to discontinue proceedings but the second borrower sought costs on an indemnity basis on the basis that the affidavit filed in support of the alleged loan was clearly false.

The borrower pointed out that the loan agreement was supposed to have been made in 2009, but the schedule attached to it had a copyright notation claiming copyright 2013; in addition the form of attestation only came into use after 2012 (i.e. 3 years after the loan agreement was claimed to have been made).

The Court awarded indemnity costs, finding that there was a basis for concluding that the proceedings were an abuse of process, having been commenced on false evidence. The Court commented that it was hard to imagine any delinquency greater than that apparent on the face of the affidavit.

The Court referred the papers to the Director of Public Prosecutions for investigation of the criminal offence of falsely swearing the affidavit.

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