ANZ v Loftus [2014] VSC 342

The lender sued for possession and the borrower denied signing the mortgage but did not give evidence. The lender was given possession and the borrower appealed.

The Appeal Court noted that where fraud is alleged, it must usually be supported by an affidavit setting out details of the defence, which was not done when the matter was first heard. However, the court permitted the borrower to file an affidavit in the interests of justice and noted that on a summary judgment application, the court cannot determine whether a person has signed a document. The bank swore the borrower did sign the mortgage and the borrower swore that he did not and was not asked to, in their respective affidavits. The Appeal Court allowed the appeal not because of any error by the trial judge but on the basis of this new affidavit.

The Appeal Court said:

It is usually not the role of the Court in an interlocutory application to determine the effect to be given to conflicting affidavits. Where there are disputed questions of fact, the resolution of the disputes may depend much on the impression created by the oral evidence given by the parties and their witnesses after they have been cross-examined. In the absence of expert evidence, the question of whether a person has signed a document is best determined at a trial after the Court has observed the evidence of the witnesses. I consider that [the borrower] has real prospects of defending the ANZ’s claim, because after he and other relevant witnesses give evidence, his account of events may be accepted. Much will depend on the impression that his evidence gives. This is a proceeding that should go to trial.

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