NAB v Zerafa [2013] NSWSC 1515

The bank called up the loan on the grounds that bank statements used to procure the loan had been doctored.

The borrower’s defence alleged:

  1. The Business purposes declaration and guarantee were forgeries which he did not sign.
  2. The Bank statements in question were undoctored at the time they were handed to the bank’s lending manager.
  3. The loan was unjust under the Contracts Review Act in as much it allowed a default to be called if the bank statement were doctored by an employee of the NAB.
  4. He never met the brokers who allegedly supplied the bank with the statements.

The borrower called a handwriting expert who said that certain signatures were not the director’s signatures.

The court refused summary judgement stating:

Whether they were his brokers is a crucial issue. If they were there cannot be much doubt that the broker supplied incorrect information in the form of the false bank statements.

There is also an issue about whether the Credit Code applies to the loan. Although the Plaintiff puts into evidence a Business Purposes, the First Defendant denies it is his signature, and the evidence from the handwriting expert says the signature on that document is not genuine. I note in that regard that there does not appear to have been service of a s 80 Notice prior to the commencement of the proceedings. Until it is resolved whether or not the loan contract is subject to the Credit Code the non-service of a s 80 Notice means that it would be inappropriate to make an order for possession or to give judgment against the Defendants

The court held the bank failed to establish that the defence was so obviously worthless that it could not succeed and ordered the case to go to trial.

Click here to read the full judgment

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