In this case the bank officer who witnessed the documents did not give evidence claiming “she was too busy”. The Court noted that bank could have subpoenaed her but did not and consequently drew a negative inference. The court determined that the borrower believed she was borrowing $400,000 not the actual amount of $680,000. The difference was taken by her bankrupt husband using blank cheques that she signed.
The court found there was no valid defence under Amadio, Garcia, Yerkey v Jones or the Trade Practices Act but unrestrained by principle the Contracts Review Act was available to allow the Court to grant relief – the court re-writing the mortgage so it only secured $400,000.