FEDERAL COURT OF AUSTRALIA

Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268

PRACTICE & PROCEDURE – Application for leave to withdraw an admission – admission made in statement of claim, defence to cross claim and affidavits that applicant had executed personal guarantee – admission accepted and acted upon by respondent – in course of cross-examination applicant claims signature on guarantee was not his own – whether unfair to other party to grant leave – leave refused.

Federal Court Rules, O 13 r 2

Deangrove Pty Ltd (Receivers & Managers Appointed) v Commonwealth Bank of Australia (2001) 108 FCR 77 cited.

Cropper v Smith (1884) 26 Ch D 700 cited.

Clough and Rogers v Frog (1974) 48 ALJR 481 distinguished.

Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738 cited.

H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694 cited.

Ridolfi v Rigato Farms Pty Ltd [2001] 2 Qd R 455 cited.

Drabsch v Switzerland General Insurance Co Ltd, unreported, 16 October 1996, Supreme Court of New South Wales Santow J, followed.

Cohen v McWilliam (1995) 38 NSWLR 476 cited.

Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 distinguished.

Hanave Pty Ltd v LFOT Pty Ltd [1997] FCA 1218cited.

Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2002] FCA 1545 cited.

Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2002] FCA 1545 cited.

DEANGROVE PTY LIMITED (RECEIVERS AND MANAGERS APPOINTED) & ANOR v COMMONWEALTH BANK OF AUSTRALIA

N 1142 OF 2000

SACKVILLE J

SYDNEY

28 MARCH 2003

THE COURT ORDERS THAT:

1. The applicants’ motion filed 26 March 2003 be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

The Motion

1                     At the commencement of the fourth day of the trial in these proceedings, the applicants foreshadowed a motion seeking leave to withdraw an admission made by the second applicant (“Mr Jeans”) that he had signed a guarantee upon which the respondent/cross claimant (“CBA”) relies in its cross claim against Mr Jeans. The proceedings were then adjourned to enable Mr Ireland QC, who appeared for the applicants, to prepare the motion and supporting affidavits. On the following day, the scheduled fifth day of the trial (26 March 2003), I heard the motion.

2                     At the conclusion of argument on the motion, I indicated that I would reserve my decision until 28 March 2003. The parties agreed that, in the meantime, the cross-examination of Mr Jeans, which had commenced on the first day of the trial, could continue. If, however, the orders now sought by the applicants are made, it will be necessary to adjourn the proceedings, probably for a considerable period.

The Proceedings

3                     The proceedings between the applicants and the CBA have a long and complex history. The present proceedings were commenced on 26 October 2000 by the applicants, Deangrove Pty Ltd (Receivers & Managers Appointed) (“Deangrove”) and Mr Jeans. Mr Jeans is the sole shareholder of Deangrove. The proceedings relate to a development undertaken by Deangrove at Holloway’s Beach near Cairns in Queensland, which was financed by a bill discount facility provided by the CBA. Until the third day of the trial, when Mr Jeans gave evidence that he had never signed a personal guarantee in favour of the CBA, it had been common ground that he had executed a guarantee of Deangrove’s obligations under the facility.

4                     The present proceedings are the second proceedings brought in this Court by the applicants against the CBA. In the first proceedings, commenced on 13 March 2000, Mr Jeans sought substantially the same relief in relation to the guarantee as is sought in the current proceedings. The first proceedings were dismissed by reason of the applicants’ failure to comply with a self-executing order requiring them to file pleadings by a certain date. Notwithstanding this, in Deangrove Pty Ltd (Receivers & Managers Appointed) v Commonwealth Bank of Australia (2001) 108 FCR 77 (“Deangrove No 1”), I permitted the applicants to commence and continue the present proceedings claiming similar relief against the CBA. The judgment in Deangrove No 1 should be read together with this judgment.

The Pleadings

5                     By an amended application filed on 17 March 2003, the applicants claim, inter alia:

“An order setting aside or varying the guarantee given by [Mr Jeans] in favour of the [CBA] in respect of facilities granted to [Deangrove] under letter of offer dated 2 March 1998”.

It is common ground that in a letter of offer dated 2 March 1998, the CBA offered to provide a bill discount facility in the sum of $7.55 million to Deangrove in order to finance the acquisition of the site at Holloway’s Beach and to undertake development work on that site.

6                     The applicants’ amended statement of claim filed on 3 October 2002 pleads (par 7) that:

“It was a condition of the Letter of Offer that [Mr Jeans] provide an unlimited guarantee to the [CBA] which guarantee was entered into by [Mr Jeans] on 12 June 1998 (“the Guarantee”).” (Emphasis added.)

The applicants further allege that in the course of negotiations between them and the CBA relating to the finance facility, officers of the CBA, including Mr Stephen Cleary, made certain misleading and deceptive representations. It is then alleged (par 15) that in reliance on the representations:

“(d) [Mr Jeans] entered into an unlimited guarantee in respect of the obligations of [Deangrove] under the Letter of Offer and the mortgage … and the equitable charge”. (Emphasis added.)

The references to the mortgage and the equitable charge in par 15(d) of the amended statement of claim are to securities executed by Deangrove in favour of the CBA.

7                     The applicants also allege (par 34) that the CBA engaged in certain conduct that was unconscionable and in contravention of s 51AC of the Trade Practices Act 1974 (“TPA”) . They claim (par 36) that in the circumstances pleaded in the amended statement of claim, the guarantee is void or otherwise unenforceable.

8                     By its amended cross claim, the CBA claims that a sum exceeding $3.6 million is due and owing to it by Mr Jeans under the guarantee in relation to the indebtedness of Deangrove. The cross claim (par 2) pleads that:

“By guarantee dated 12 June 1998 between [Mr Jeans] as guarantor, Deangrove as debtor and the [CBA], Mr Jeans guaranteed to pay to the [CBA] the ‘secured monies’ as defined therein including [financial accommodation in the form of a Fully Drawn Loan]”.

Mr Jeans’ defence to the cross claim admits the allegations in par 2 of the cross claim.

9                     It will be seen that Mr Jeans not only admits in his defence to cross claim that he guaranteed Deangrove’s indebtedness to the CBA, but the applicants positively assert in the amended statement of claim (par 15(d)) that Mr Jeans entered into an unlimited guarantee in respect of Deangrove’s obligations.

The Admissions and Mr Jeans’ Change of COurse

10                  In order to address the applicants’ motion it is of some importance to trace the nature of the admissions made by Mr Jeans and the circumstances in which he came to deny that he had executed the guarantee in the capacity as guarantor.

11                  In an affidavit sworn in the first proceedings on 13 March 2000, Mr Jeans said this:

“From my Diary I am able to say that I had a meeting with Steve Cleary at 2pm of 4 June 1998 for the purpose of signing documents. I am not able at this time to say what documents were signed however from other searches conducted by me I say that Deangrove Pty Limited and I signed the following documents:

(a)   Equitable Mortgage (Company) now bearing date 12 June 1998 ….

(b)   Mortgage over real estate …dated 12 June 1998 ….

(c)    Guarantee by myself of the facility. I do not appear to have a copy of this document at the present time.”

12                  The current proceedings were commenced by the filing of a statement of claim on 26 October 2000. That statement of claim included the allegation in par 15(d) of the amended statement of claim, set out at [6] above. By a defence filed on 13 July 2001, Mr Jeans admitted the allegations in par 2 of the CBA’s cross claim, the terms of which have also been set out (at [8] above). That admission was repeated in an amended defence filed on 16 August 2001.

13                  In an affidavit sworn on 25 September 2002, Mr Jeans stated the following:

“On 12 June 1998 I signed:-

(i)                 a contract for sale of land …;

(ii)               I signed a guarantee for the benefit of the CBA a true copy of which is [exhibited];

(iii)             I executed an equitable mortgage on behalf of Deangrove granted to the CBA a true copy of which is exhibited …”.

14                  On 3 October 2002, the applicants filed the amended statement of claim to which reference has already been made. Paragraph 7 of the amended statement of claim inserted the words

“which guarantee was entered into by [Mr Jeans] on 12 June 1998”.

These additional words make explicit that Mr Jeans was alleging that he had entered into a personal guarantee on 12 June 1998 in respect of Deangrove’s obligations under the security documents.

15                  Mr Jeans has had a number of legal advisors in the course of these proceedings. His current solicitors were engaged in November 2002. They briefed senior counsel in January 2003.

16                  In an affidavit filed in court on the first day of the hearing (17 March 2003) and read on that date, Mr Jeans said the following:

“On 3 June 1998, I had telephone conversations both with Steven Cleary and Peter Hocking [another officer of the CBA]. At 2:00 pm on that day at Mr Cleary’s request I went to the Bank’s offices in Sydney and was provided with security documents including the guarantee which is the subject of these proceedings. I signed the documents in the reception area where Steven Cleary had left them for me. Mr Cleary was not there and he did not witness my signature on the documents at that time. I had no conversation with Mr Cleary at the time I signed the security documents”.

It is to be noted that the date of the signing is said to be 3 June 1998, while in earlier affidavits Mr Jeans said that the signing occurred on 4 June 1998 or 12 June 1998. Nothing turns on this for present purposes.

17                  The first suggestion that Mr Jeans had not signed the personal guarantee came on the third day of the hearing. In the course of his cross-examination, he was asked by the CBA’s counsel, Mr Bell, to look at a copy of the guarantee. The guarantee contains what purports to be Mr Jeans’ signature in two places. The first appears on p 12 of the document above the word “Guarantor”. This signature appears from the document to have been affixed in the presence of Mr Cleary as witness. Mr Jeans’ signature also appears on p 13 of the guarantee as the sole director and sole secretary of Deangrove authorising the affixing of Deangrove’s seal to the guarantee.

18                  Mr Jeans agreed at the outset that he was being shown a copy of the guarantee which he had signed in respect of the debts of Deangrove. He also agreed that, although the document was dated 12 June 1998, he had in fact signed it on 3 June 1998. The following exchange then took place:

“Your signature appears on [page 12] or a copy of it at least? … A signature appears there, yes. It’s not the same as my normal signature which is on [page 13].

There is no doubt that it’s your signature though, is it? …. I can’t confirm that right now because it’s different from my normal signature.

…

You are not seriously suggesting to his Honour that you didn’t sign this guarantee are you? …. I signed [page 13], that’s my normal signature. You are asking me if that’s my signature on [page 12], and I’m saying that it is not my normal signature.

…

Are you suggesting to his Honour that you didn’t sign this guarantee in your own personal capacity? … I’m suggesting that that signature there is not my normal signature.”

19                  Mr Jeans went on to say that until the guarantee had been shown to him in cross examination he had never scrutinised it. Accordingly, it was the first time that he had noticed that his signature as guarantor appeared to be different from his signature in his capacity as director and secretary of Deangrove. Mr Jeans later said that the signature purporting to be his as guarantor was “definitely not my signature” and that he had only signed the guarantee in his capacity as director and secretary of Deangrove. In short, he denied that he had executed the personal guarantee. It was that denial that prompted the applicants to file the current motion.

The Proposed amendments

20                  The applicants’ motion seeks orders giving them:

·        leave to withdraw the admission contained in par 2 of their amended defence to cross claim; and

·        leave to further amend the statement of claim to substitute the following for par 7:

“It was a condition of the Letter of Offer that [Mr Jeans] provide an unlimited guarantee to the [CBA] which the [CBA] alleges was executed by [Mr Jeans] in June 1998 (“the Guarantee”)”.

21                  By a document entitled “Notice of Proposed Amendments”, the applicants have indicated that they also propose to delete par 36 of the statement of claim and to add the following paragraphs:

“36.(a) In or about June 1998 the [CBA] prepared a form of guarantee for execution on behalf of [Deangrove] as principal debtor and by [Mr Jeans] as Guarantor;

(b)On or about 3 June 1998, the [CBA] proffered the Guarantee for execution on behalf of [Deangrove] and by [Mr Jeans];

(c)  [Mr Jeans] applied the common seal of [Deangrove] to the Guarantee and signed the same as sole director and sole secretary of [Deangrove];

(d)[Mr Jeans] did not sign the said Guarantee in the capacity of Guarantor;

(e)  The [CBA] by its agent Stephen Cleary added a signature to the Guarantee purporting to be the signature of [Mr Jeans];

(f)   The actions of Cleary and the [CBA] pleaded in sub-paragraph (e) above were deliberate and fraudulent and carried out without the consent of [Mr Jeans].

37. In the circumstances pleaded in paragraph 36 above the Guarantee is not enforceable against [Mr Jeans].

22                  It will be seen that Mr Jeans, in effect, seeks to withdraw his admission made in both the statement of claim and the defence to cross claim that he signed the guarantee on which the CBA relies. Mr Jeans now wishes to maintain that he did not execute the guarantee and that what purports to be his signature was fraudulently added by an officer of the CBA, Mr Cleary.

23                  There was no evidence adduced on the motion to support the allegation of fraudulent conduct against Mr Cleary. Mr Ireland submitted that if Mr Jeans’ evidence that he had not executed the personal guarantee was ultimately accepted, the fact that Mr Cleary purported to witness Mr Jeans’ signature constituted evidence that he must have forged Mr Jeans’ signature.

The Applicants’ Submissions

24                  Mr Ireland submitted that the applicants’ motion should be approached on the basis that they had made formal admissions on the pleadings and required leave to withdraw those admissions. He invoked the power conferred by Federal Court Rules,O 13 r 2, which provides that the Court may, at any stage of any proceeding, order that a party have leave to amend a document in the proceeding in such manner as the Court thinks fit.

25                  Mr Ireland relied on a passage in Cropper v Smith (1884) 26 Ch D 700, applied by the High Court in Clough and Rogers v Frog (1974) 48 ALJR 481, at 482. In Cropper v Smith, Bowen LJ said (at 710-711):

“the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases … . I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party…. [A]s soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as much a matter of right on his part to have it corrected, if it can be done without injustice, as anything else in the case is a matter of right”.

26                  Mr Ireland contended that this was properly to be regarded as a case of error or mistake, in that Mr Jeans had mistakenly assumed that he had signed the guarantee both in his capacity as sole director and secretary of Deangrove and as guarantor. It was only when Mr Jeans appreciated in the witness box that his purported signature as guarantor was different from his genuine signature as director and secretary of Deangrove that he realised that he had not signed the document in his personal capacity. Moreover, the evidence from his previous legal advisors showed that, so far as they were concerned, no question of authenticity of Mr Jeans’ signature had ever arisen. Counsel responsible for settling the pleadings had stated in affidavit evidence that they had no occasion to address that question.

27                  Mr Ireland accepted that

·        Mr Jeans’ position until the third day of the trial had been that he had executed the guarantee in his personal capacity;

·        Mr Jeans’ position had been reflected not only in the pleadings but in a series of affidavits sworn by him over a period of three years;

·        if the application for leave to withdraw the admissions and amend the pleadings were granted, it would be necessary to adjourn the hearing, if only because the applicants required handwriting evidence to support their case;

·        Mr Jeans, whether or not he actually signed the personal guarantee, intended (as he acknowledged in his evidence on the motion) to provide an unlimited personal guarantee to CBA of Deangrove’s debts; and

·        the applicants had been guilty of serious procedural defaults in the course of the litigation.

Nonetheless, so Mr Ireland argued, in the absence of irremediable prejudice to the CBA, the applicant should be permitted to withdraw Mr Jeans’ admission so as to raise the issue in dispute between the parties. This was whether Mr Jeans had in fact executed the guarantee in his capacity as guarantor.

Reasoning

The authorities

28                  The factual circumstances of the present case are different from those of Clough and Rogers v Frog upon which Mr Ireland relies. In that case, the question was whether a party could amend its defence shortly before the hearing in order to plead that the plaintiff’s action had been statute barred. No issue arose as to the entitlement of a party to withdraw an admission made in the course of the proceedings.

29                  The principles relating to the circumstances in which a party should be given leave to withdraw an admission were addressed by Rogers CJ Comm D in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738. In that case, admissions were made by the defendant’s legal representatives after consent orders were made requiring the defendant either to admit certain matters or to serve an expert’s report in support of a denial of those matters. Rogers CJ rejected (at 746) the approach taken in H Clark (Doncaster) Ltd v Wilkinson [1965] Ch 694, as the product of “another age and … other circumstances”. In Clark v Wilkinson, Lord Denning MR had said this (at 703):

“An admission made by counsel in the course of proceedings can be withdrawn unless the circumstances are such as to give rise to an estoppel. If the other party has acted to his prejudice on the faith of it, it may not be allowed to be withdrawn … . But otherwise an admission can be withdrawn. For example, an admission is often made by error in a pleading. It can be withdrawn if the other party has not been prejudiced, or, indeed, if any prejudice can be cured by compensation in costs.”

Rogers CJ, by contrast, said (at 750) that an admission made by counsel in the proceedings

“should not be permitted easily to be withdrawn so as to make the procedure [requiring a party, in certain circumstances, to make admissions] meaningless”.

On the other hand, his Honour recognised a countervailing policy, namely that parties should not be discouraged from making admissions out of fear that, once give, the admissions cannot be withdrawn.

30                  Later cases have given weight to the observations made by Rogers CJ in Coopers Brewery v Panfida. In Ridolfi v Rigato Farms Pty Ltd [2000] 2 Qd R 455, for example, the Queensland Court of Appeal upheld the refusal of the trial judge to allow the defendant in a personal injuries case to withdraw admissions deemed to have been made by reason of a failure to dispute a notice to admit facts. de Jersey CJ, with whom McPherson JA and Williams J agreed, observed (at 459) that:

“There is no principle that admissions made, or deemed to have been made, may always be withdrawn ‘for the asking’, subject to payment of costs. The discretion is broad and unfettered, as exemplified by [Coopers Brewery v Panfida]”.

Williams J noted that counsel had referred to the passage of Bowen LJ in Cropper v Smith. His Honour said (at 460):

“That statement, while made over 100 years ago, is still relevant, and it encapsulates a principle which a judge must always take into consideration in determining whether or not it is appropriate, for example, to allow a party to withdraw an admission. Essentially it is no more than a recognition that courts will, so far as possible, ensure that a party has a fair trial. But, for example, where the detriment or prejudiced is self-induced, the party may not be entitled to relief”.

Williams J went on to endorse the comment of Rogers CJ that the approach of Lord Denning in Clark v Wilkinson was the product of another age.

31                  In Drabsch v Switzerland General Insurance Co Ltd, unreported, 16 October 1996, Supreme Court of New South Wales, Santow J in the context of an appeal from orders made on an application for leave to withdraw admissions in pleadings, summarised the relevant principles as follows:

“1. Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted … .

2. The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded … .

3. Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn … .

4. It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission … .

5. Following Cohen v McWilliam & Anor (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party”.

32                  Some care must be taken in applying the principle stated in Coopers Brewery v Panfida. Rogers CJ clearly gave great weight to efficient case management and the importance of avoiding disruption to court lists. His Honour may also have been influenced by the fact that the admission was made in response to a consent order in the proceedings. Since Coopers Brewery v Panfida was decided, the High Court, in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146, has reaffirmed the principle stated by Bowen LJ in Cropper v Smith as applied in Clough and Rogers v Frog. In that case, the majority (Dawson, Gaudron and McHugh JJ) observed (at 154) that

“Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.”

Later, their Honours said (at 155):

“Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties.”

33                  In Hanave Pty Ltd v LFOT Pty Ltd [1997] FCA 218, Moore J took account of the observations in Queensland v J L Holdings in granting leave to an applicant “at the concluding stages of…protracted litigation” to withdraw a concession made on its behalf by counsel. The concession concerned the scope of a representation pleaded in the statement of claim. His Honour granted leave for the applicant to adopt a broader construction of the pleadings, notwithstanding that an adjournment was apparently required in order to allow the respondents to adduce further evidence required by the expansion of the issues in the case.

34                  It seems to me that, having regard to the reasoning in Queensland v J L Holdings, questions of case management (in the sense of efficient court administration and use of court time), although not irrelevant, should not play a decisive or paramount role in determining whether or not to grant leave to a party to withdraw an admission. I do not, however, read the High Court’s decision as entitling a party to raise a fresh issue in litigation at any time of its choosing, regardless of the basis on which the litigation has been conducted or the stage the proceedings have reached. It must be remembered that in Queensland v J L Holdings, the application to amend the pleadings was made six months prior to the scheduled date of the trial and, according to the majority, the amendment raised no complex factual issues. The High Court was not concerned with an application in the course of a hearing to withdraw an admission made on a factual question within the knowledge of the party making the admission.

35                  Consistent with what was said by Santow J in Drabsch v Switzerland Insurance, a party who makes a clear and distinct admission on a factual question, which is accepted and acted upon by the opponent, should not be permitted freely to withdraw that admission. Whether or not it is appropriate to grant leave will depend upon the particular circumstances of the case and an assessment of the interests of justice. The relevant circumstances include the nature of the admission, how it came to be made (for example, whether it was made deliberately or inadvertently), when and why the party seeks to withdraw the admission and the impact of any withdrawal on the other parties to the litigation.

The Present Case

36                  The circumstances of the present case are considerably removed from those in which leave to withdraw admissions is typically granted. This is not a case where a legal advisor has mistakenly or inadvertently failed to dispute an allegation made by another party, drafted pleadings on a misapprehension as to the instructions given by the client, or abandoned a legal point without full consideration of the implications of doing so. Nor is this a case where a party has made an admission without an opportunity to ascertain the facts upon which the admission is founded. I do not suggest that these are the only circumstances in which leave to withdraw an admission will be granted. Far from it. The point is simply to draw attention to the unusual features of the present case.

37                  Mr Jeans instituted proceedings in this Court in March 2000, claiming an order to set aside the guarantee in favour of the CBA. He sought relief on the basis that he had been induced to execute the guarantee by misrepresentations made on behalf of the CBA. The starting point for the relief he sought was the fact that he had executed a personal guarantee. Mr Jeans did not merely plead that fact. In his first affidavit, he asserted (as he acknowledged in his oral evidence at the trial) that he had indeed signed the personal guarantee. He repeated that assertion in subsequent affidavits sworn at a time when his legal representatives had a copy of the guarantee available for his inspection. (It was an agreed fact that a copy of the deed of guarantee bearing two purported signatures of Mr Jeans, was annexed to the affidavit of Mr Andrew Pavli (an officer of the CBA) sworn on 27 July 2001, and was also served on the applicants’ legal advisers around that time.) In fact, Mr Jeans swore that he had executed the personal guarantee in three separate affidavits, executed over a period of three years.

38                  It is hardly surprising that the pleadings filed on Mr Jeans’ behalf proceed on the basis that he had signed the guarantee in his personal capacity. Mr Jeans had said so in his affidavits. His legal advisors (he has had a number over the course of the litigation) were entitled to assume that Mr Jeans, an experienced businessman, knew whether or not he had signed the guarantee as guarantor. They did not operate under any misapprehension as to their instructions.

39                  In my opinion, Mr Jeans has had more than a fair opportunity to put forward any basis that may be available to him to challenge the validity or enforceability of the guarantee. Whether he signed the guarantee is a matter within his own knowledge. It is true that he did not have a copy of the guarantee before him when he swore his first affidavit (13 March 2000), but his legal advisors had a copy when he swore the second and third affidavits. Indeed, Mr Jeans’ affidavit of 25 September 2002 exhibits a copy of the guarantee.

40                  In substance what has happened in this case is that Mr Jeans, while in the witness box, identified an apparent discrepancy between the two signatures on the guarantee. That led him to change his previous evidence that he had executed a personal guarantee. The differences between the two signatures do not of themselves establish (as Mr Ireland acknowledged) that Mr Jeans did not sign the guarantee in both places. If leave is given to withdraw the admissions, it would open up a further factual issue that would presumably depend (like the other major factual issues in the case) on an assessment of the evidence of Mr Jeans and of that of other witnesses, including Mr Cleary. (I should make it clear that I express no view as to Mr Jeans’ evidence at the trial. It is not appropriate that I should do so at a time when the evidence in the case is incomplete.)

41                  Mr Ireland suggested that this should be regarded as a case where the issue now sought to be raised by Mr Jeans, if resolved in his favour, would be determinative of the outcome. However, this is not so. Mr Bell made it clear that if the applicants were given leave to withdraw their admissions and amend their pleadings, the CBA would not only dispute Mr Jeans’ evidence, but rely on other contentions. These would include claims that Mr Jeans had entered into an oral contract of guarantee (Mr Jeans having accepted that he had always intended to provide a personal guarantee to the CBA) and that Mr Jeans was estopped from denying that his signature appears on the personal guarantee. Mr Ireland pointed to what he said would be difficulties facing the CBA in establishing either an oral contract of guarantee or the elements of promissory estoppel. It is possible that Mr Ireland’s observations might ultimately have some force. Nonetheless, at this stage of the litigation, it is impossible to say that the CBA would not have an arguable case on the issues foreshadowed by Mr Bell. Accordingly, a grant of leave to the applicants would open up a number of fresh issues that would need to be explored in detail at the trial.

42                  Mr Ireland acknowledged that if leave were granted to the applicants, an adjournment of the proceedings was inevitable, if only because the applicants needed to obtain expert handwriting evidence to support Mr Jeans’ claims. The fact that an adjournment would be necessary is, in my opinion, a relevant factor to take into account in determining whether to grant leave.

43                  This would not be the first time a hearing in these proceedings has had to be adjourned or vacated. The trial was first set down for hearing in early December 2002, for nine days. On 1 November 2002, a month before the trial was scheduled to commence, I vacated the hearing date on the applicants’ motion. I did so reluctantly having regard, among other things, to the applicants’ repeated breaches of directions of the Court in the course of these proceedings: Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2002] FCA 1352. (Indeed, in an earlier judgment I referred to the “lamentable history of the litigation”, a state of affairs virtually wholly attributable to the failure of the applicants to comply with directions made by the Court: Deangrove Pty Ltd (Receivers and Managers Appointed) v Commonwealth Bank of Australia [2002] FCA 1545, at [11].) In the judgment vacating the hearing dates, I recorded that I had made it clear to the then counsel for the applicants that they could expect no further indulgences in relation to an adjourned hearing.

44                  I regard the need for an adjournment as relevant not because of any inconvenience occasioned to the Court (although the Court would be inconvenienced, not for the first time), but because yet another delay in these already protracted proceedings would work unfairness to the CBA. I appreciate that the CBA is a well-resourced bank. But, like other litigants, it is entitled to be treated fairly by its opponents. Yet another adjournment would expose it to a risk that some of the very large costs incurred in this case might prove to be irrecoverable, notwithstanding the indemnity thus far provided by Mr Jeans. Moreover, a grant of leave would require the CBA and one of its officers to address a claim for fraudulent and, indeed, criminal conduct that has never been hinted at in three years of litigation. In my view, having regard to the history of this litigation, it would be unfair to the CBA to grant leave to the applicants to withdraw their admissions and mount a case of fraudulent conduct against Mr Cleary and the CBA. There must come a point at which the interests of justice demand that a party to litigation take responsibility for his own conduct.

45                  I have reached the conclusion that the applicants should not be granted leave to withdraw their admissions independently of whether they have provided an adequate explanation for the admissions having been made in the first place. In my opinion, however, the explanation provided is not satisfactory. As I have noted, whether Mr Jeans did or did not sign the guarantee in his personal capacity is a matter within his knowledge. Accepting that he did not scrutinise the guarantee so as to inspect what purported to be his signatures, the fact is that he swore three times that he did sign as guarantor. On two of those occasions, he had the guarantee available for inspection if he chose to do so. Mr Jeans is an experienced businessman who (as is not in dispute) understands the significance of having signed a personal guarantee. I do not regard his failure to check the authenticity of his signature prior to swearing two affidavits asserting that he had signed a personal guarantee as amounting to a satisfactory explanation for withdrawing admissions on factual questions central to the case on the third day of the trial.

conclusion

46                  For the reasons I have given, the applicants should be refused leave to withdraw their admissions and to amend their pleadings in the manner foreshadowed. The motion must be dismissed.

Associate:

Dated: 28 March 2003