This is a real story of predatory lending perpetrated by the Commonwealth Bank of Australia, and of the alleged fraudulent attempt to steal property involving a corrupt cartel of the CBA, the bank’s lawyers, the Tasmanian court system and the Financial Ombudsman Service.
(The material below has been compiled from affidavits on the public record)
The CBA Loan Account 2008
Prior to October 2008 Westpac was my sole banker and mortgagee of the business of my former husband and I called Crafty Critters P/L, a craft and gift shop. We had a history of no defaults or credit problems. When I approached CBA for the initial 2008 loan, as their interest rates were favourable, I personally owned 3 properties, two encumbered. In addition, my ex-husband and I jointly owned a commercial property that was unencumbered. There was a residential Investment loan over an investment property at Abbott Street East Launceston and my family home at Elphin Road Newstead. In 2012 after my then husband and I were divorced the Family Court transferred his interest in the business premies at 16–18 Reuben Court Kings Meadows to myself.
In mid-2008 I made inquiries of various financiers (including CBA) about obtaining a loan to develop the business property. The ambition was to improve the site to run a possible café/shop.
Kings Meadows is a growing part of Launceston, and the Reuben Court address was a ‘blue chip’ location immediately next to the shopping centre. The premises previously housed a former chainsaw shop. Renovations to this property should have increased its value and we viewed the property as our superannuation.
I was directed to the CBA’s Launceston loans officer, Mr. Damien Hager. I had informed Hager that we wished to borrow $300,000 for 30 years at 7% – along the lines of our existing finance. He said, in effect ‘That should be fine. We would be using the Reuben Court property as security.’
Hager inspected Reuben Court on at least two occasions. On the first occasion he brought with him a CBA Bank form called Personal Balance Sheet and asked me to fill it out, which I partially completed. I don’t believe I was asked to fill out a loan application, and the bank cannot provide me with a copy of one.
Prior to the Bank’s letter of offer of 22 October, Hager informed me, in effect, ‘The loan will be a Business loan and it will be for 15 years not 30 years and 9.5% not 7%.’ I said ‘That may make it tight. Iam not happy …’ He said ‘You don’t need to worry. I can tell you your loan application has gone through all the Bank’s assessment processes – and it shows you can afford it. The Bank’s BetterBusiness Loan is the suitable product for you.’
I was reassured by this statement and decided to accept the offer, although I was unhappy about the late change during negotiations in the reduced length of term and increased interest rate. We had already committed to go ahead with the improvements and had spent considerable sums having plans drawn up, etc.
We signed the paperwork accepting the CBA BetterBusiness Loan offer of $300,000 (with repayments per month $3,133) in reliance on the Bank’s representations made to me by Hager. The loan was a new loan to extend and improve our existing commercial building. In the process I had mortgaged our then unencumbered commercial property.
The value of Reuben Court was recorded in the CBA personal balance sheet at the time I prepared it for the October 2008 loan at $800,000, including the proposed expenditure of $300,000 as improvements.
I have acquired, during 2015 from documents provided to me by the Financial Ombudsman Service (FOS), certain internal Bank documents from 2008.
On 7 and 8 October 2008, Sandeep Chail, Risk Associate CBA, conducted a finance risk assessment of the Bank’s loan product and our needs and concluded “The Company balance sheet reflects an extremely poor position with major deficit (retained losses)” and “Strong Personal Balance Sheet of the guarantors provides comfort”.
On 21 October 2008, Andrea Napier, CBA Regional Manager, stated “Pricing at 9.50% approved with estab fee of $850 (0.28%) to ‘win’ this new client, and to the Launceston office ‘Good luck’.”
The credit assessment document of CBA, 30 October 2008, by Sandeep Chail referred to a ‘Technical Decline’, which appears to refer to one or more adverse credit assessments and rejection by the assessment process of the proposed CBA finance product.
Clearly the Bank was prepared to disregard its own credit assessments process, and to internally change records and adjust its assessment to ‘win’ me and my then husband from Westpac. The Bank was relying for its risk position on the security of our assets, without regard to our inability to comply with the credit contract or to repay except by causing us hardship.
The Bank adjusted my personal balance sheet to show a higher income than I had stated by treating ‘rent’ payable to my ex-husband and I by Crafty, and interest charges already paid on the loan as part of our income and on the expense side by adjusting our expense profile to suit its credit ‘offer’, as conducted by a series of four tests comprising two internal ‘Servicing Capacity’ tests and two ‘Actual I/O Scenarios’. These documents are nearly identical and appear to have been done within a few weeks of each other. They show internal adjustments to bring the Bank’s loan product into line with its lending criteria. This was done without our knowledge.
The net Income per annum, adjusted from tax returns and the Personal Balance Sheet, does not change and sits at $126,440 on all four documents. Total living expenses per annum does not change and sits at $22,932 on all four documents. What changes are the ‘commitment levels’ and net servicing surplus/deficit per annum (AD), and the commitment level and the DSCR (Debt Servicing Cover Ratio). The commitments per annum have been changed over the four records to lower the commitment level from 96%, to 92%, to 90% and finally to 87% to ensure that we could ‘qualify’ for the loan.
CBA also used the assessment of a half filled out Personal Balance Sheet that shows my assets at $3,096,000. This personal balance sheet is not dated, signed or complete.
My later complaint to the Office of the Australian Information Commissioner (OAIC), December 2015, produced another personal balance sheet in similar form, with alterations not made by me.
I was unaware of the internal Bank documents, its internal assessment process, and that the Bank knew that I would be unable to service the loan or only do so with hardship. All I ‘knew’ was that Hager had said to me that the Bank had concluded that the loan was ‘suitable’ and manageable.
Yet the Bank knew that its product was not suitable to our small business or our personal circumstances, and it made the credit offer for us to become its customer relying solely on our asset position to extract itself from known finance risks. Had I known the true position and the subsequent hardship it would cause me, I would not have entered into the transaction.
This loan was the beginning of the downward spiral for me from a healthy financial position to the present desperate position, the breakdown of my family, and the loss of my financial and social well-being and my health, and has led to the inability of my teenage daughter to cope with her life.
The Loan Account 2010
In 2010 Hager approached me and proposed that the Bank refinance our existing Westpac Home Loan, which was approximately $440,000. He advised that we would be eligible for a ‘Wealth Package’, offering a better interest rate and fewer fees on all accounts. (Loan Application)I went ahead with his proposal on the basis of this representation but I later discovered that the promised discount was never applied to the BetterBusiness loan, which meant that the package was not worth the yearly package rate we were charged.
As in 2008, I don’t believe we completed a loan application, as one has not been provided to me by the Bank when requested.
In June 2010 CBA refinanced the Westpac home loan (secured by Abbott Street and Elphin Road), with an additional top up of approximately $60,000 to give us a total of $500,150.
Since becoming encumbered to CBA after 2008 and 2010 most of my properties have now been forcibly sold off by the CBA, and at prices below market value. This includes Reuben Court, Abbott Street and my family home at Elphin Road. All of this has occurred without my consent. I have incurred devastating losses, not least because of the flawed mortgagee sale process adopted by the Bank.
The 2010 Loan Documentation in regards to the refinanced loan from Westpac that was finally produced unredacted, from a complaint lodged to the OAIC in December 2015, show that my then partner and I did not qualify for the 2010 refinanced loan either. The document, previously unsighted, shows that we should never have been given the 2010 loan either.
The Loan Application Form (LAF) for our 2010 application to move from Westpac to CBA shows that we were, on CBA’s estimate, 142.56% committed. That is, we had commitments per month of $8,453 and income of only $5,234 per month.
The Servicing Capacity Test for the second loan in 2010 clearly shows a different Income than does the 2010 LAF. The income now appears as $135,305 (not $62,810.16 as on the 2010 LAF). The commitments change from $101,655.84 to $96,553.00. These alterations greatly reduce the Commitment level, evidently to facilitate approval.
Between 8 April 2010 and 28 July 2010, according to the Bank’s internal records obtained in 2014, there exists a series of internal Decision Comments for the 2010 loan. A 22 April 2010 note states – “Fails Servicing Test Category 3”. On 3 May 2010 it states – “Fails Servicing Test – Category 3”. On the same day, a Manual Decision OA08 was made by a Bank manager to unlock and input valuations and for the facility to be approved as per comments. On 10 May 2010 the Loan was Formally Approved.
The 14 April 2010 Internal Bank memo states “Long term Westpac clients however BBL $270k won from them in Oct 08”. It also states “Servicing for $500k debt based on 30 yr term – mitigant is potenation [‘potential’] for client to sell non core assets ie shop, rental property or holiday home and fully clear debt.”
This memo also states “Wayne [CBA officer] servicing position is accepted as I have verified that Susan is currently receiving some payment from Centerlink for child maintenance. Fully secured position with a few Non Sensitive assets held, which can be sold to reduce/clear debt if required.” I was not receiving Child Maintenance; rather I was then in receipt of Family Tax Benefit A and B.
CBA clearly failed to consider our income and our servicing capacity for this loan. Loan number 2 should have been refused according to the Bank’s lending criteria and as a matter of banking prudence.
Had I known of the Bank’s assessment of our loan position in 2010 as now disclosed, or that it had formed the view that its finance products were not suitable to my finance needs and personal circumstances, I would not have proceeded to transfer my longstanding Westpac account, with its unblemished credit record, to CBA, and would not now be in the present unhappy financial and personal position that I find myself in.
During 2011 repayments of the CBA loans of $6267 per month became even more difficult but I was pro-active by asking a Real Estate Agent to view Abbott Street with a view to selling it. We were living hand to mouth, even though I was working very hard and was asset positive. My relationship with my husband also started to break down as financial difficulties and pressures increased.
The Real Estate Agent had interested buyers so this would be a real option to escape the CBA entrapment. I also intended to be pro-active in contemplating a suitable sale price for Reuben Court, should a sale of that be required to reduce the debt. I hoped to avoid that latter prospect because Reuben Court housed our small businesses – source of repayment of the loans and interest to the Bank. I had already renovated the property and had begun to operate Café S.
On 11 March 2011 I agreed with the Launceston branch to a varied credit arrangement to redraw the 2010 loan amount by an extension of $13,000, for the reason that I was having difficulty paying the repayments and I wasn’t sure what else I could do (CBA bank statement shows that I was then seriously overdrawn). No contract exists for this redraw, contrary to the 2011 National Credit Code.
At about that time Ms Summer Palacious (Melbourne CBA) advised me that she was taking over the account in preparation for the sale of Reuben Court. I explained, ‘I have got a good real estate agent who is able to secure a sale of the Abbott Street property for a good price in excess of $300,000. This sale would pay out the total of the BetterBusiness loan, which was securing the commercial property Reuben Court. I would then be left with one commercial property and two businesses with enough income to pay the remaining loan. I would also have my family home. If you force me to sell Reuben Court that will undermine if not destroy my small businesses that I have worked so hard to build and probably destroy my ability to repay the loans.’ Palacious said that the Bank was taking possession of the Reuben Court property. In effect, ‘We have the mortgage documents and this is what will be sold’.
In forcing the sale of Reuben Court rather than working with me over the sale of Abbott Street the Bank knowingly adopted a position which had the worst possible effect on my finances and my small businesses.
Bank Sells 16-18 Reuben Court Kings Meadows
In relation to the sale of Reuben Court the Bank failed to appoint an appropriate Real Estate Agent. Instead of appointing an agent with experience in selling Commercial Property, it appointed a residential Real Estate Agent called Towns Shearing. I protested strongly at the time to Palacious, noting ‘Towns Shearing is a Residential Real Estate Agent and would not have the experience or clientele that a Commercial Real Estate agent would have’. She responded that they were happy with their appointment.
I have experience in real estate and appreciate the importance of appointing an agent with experience in the particular type of property being sold. The CBA, amongst other acts of carelessness, failed to ensure appropriate ‘for sale’ signage was erected on the property. A small sign inside a tinted window and then finally, after more protests from me a, larger sign was placed out the front without any Auction Details.
The CBA also failed to ensure appropriate advertising of the sale of Reuben Court with advertising only done in the Residential Real Estate Guide of the Examiner newspaper, on the Towns Shearing Website under Residential, and for approximately only one month on the Commercial Real Estate Website over the Christmas period and after the auction itself.
The auction was held the day after a Thursday public holiday where generally people take a 4-day break. The only people present were my Uncle and I and two passers by. As expected, the property failed to sell at auction.
In spite of my protests, the CBA failed to act reasonably or prudently in the sale of Reuben Court, and it failed to see the property achieve the price it should have achieved. CBA’s actions are in breach of the Corporations Act 2001 – Sect 420A.
Sale of the Reuben Court Property
We had purchased Reuben Court in 2002 for $240,000. On 19 July 2013 (11 years later and $300,000 in improvements) Reuben Court was sold for $364,000. A dual price of $400,000 was appended, incorporating GST according to the Real Estate Contract. According to the Valuer General the CBA should never have stated that the sale price was $400,000 as a sale price cannot include the GST component.
The valuations held by the Bank changed dramatically, performed for the Bank by Opteon. The Valuer at Opteon Launceston was Gavin Lipplegoes, an ex CBA Business Banking manager – clearly a conflict of interest (and against CBA Policy). The valuations confirm that lack of independence. The valuations were $450,000 (in 2008) prior to the lending, $650,000 (in 2010, after improvements), $430,000 (in 2012, after it was passed in by the Bank) and $380,000 (in 2013 – just prior to being resold).
The sale price is below the Valuer-General’s valuation for rating purposes and appears to have been prepared to justify the Bank’s asset sale position. The sale price is also below the valuation of the property prior to the loaning of $300,000 to improve the then unencumbered property.
There were also unusual changes to the real estate contract for sale, which included the added words (“includes GST”) and changes to the deposit amount. None of these changes have been initialled in the usual way on the final form of sale document. Even though the words ‘includes GST’ have been added beside the purchase amount, they have placed an X in the box “this is not a taxable supply according to special Clause 17”.
The purchaser of the Property was Reuben Court Pty Ltd. This company was not incorporated until 22/7/2013, 3 days after the signing of the contract:
On 18 November 2013 the sum of $36,363.64 was wrongly charged to my CBA bank account in respect of GST for this sale. According to the Australian Taxation Office this charge to me is impermissible.
On 2 September 2013 I received the settlement statement from CBA solicitors Simmons Wolfhagen for the sale of Reuben Court. This Settlement Statement does not show a GST component, which should be shown if GST was originally claimed by the new owner.
The Financial Ombudsman Service Complaint and Process:
In mid-2012, I lodged a complaint with the Financial Ombudsman Service. FOS is funded by the banking sector. FOS works closely with CBA, and appears to act as its agent. When I complained to FOS again in 2016 under its terms of reference about the Abbott Street property I was told by FOS that the CBA had contacted FOS and said FOS could not handle my complaints because the Bank had the matter being dealt with in a court of law. When I pointed out that my matter with FOS was separate from matters in the Tasmanian Supreme Court FOS declined to assist me. FOS also said that it was unable to help me with the Reuben Court property issue as I had handed back the keys to the property as requested by the Bank. FOS claimed it could only handle the Reuben Court matter if the bank had started legal action – at which point all legal action must stop.
On 18 October 2012 I received a letter from FOS explaining the process and stating that if they find that the Financial Service Provider should not have lent the money, they will determine what has to be done to put me back into the position I would have been in had the loan not been approved. I felt reassured.
On 22 November 2013 I received a further letter from FOS explaining the process and again stating that if they conclude that it was inappropriate for the FSP to have lent the money, they will consider what loss I have incurred.
The FOS process took two years, with CBA failing to provide all necessary documentation. Additional documentation was provided to me through the OAIC complaints process. The FOS ombudsman handling the complaint, Justis Tonti-Fillipini, verbally advised me that the Bank had not provided her with all information requested by FOS before FOS made its decision in August 2014.
My situation continued to worsen. It then became evident during 2014 that whatever the outcome of FOS and any court process, the CBA was intent on stripping me of everything I owned at whatever cost to me, whatever its merits or entitlement, and that it would prevent any other financier assisting me.
FOS could have made a recommendation in my matter, which would have allowed any errors in the accounts to be corrected prior to the final determination. Instead, because of the lengthy time the complaint took to investigate, my position worsened and FOS took the position of going straight to Final Determination under its terms of reference.
On 13 August 2014 I received the Final Determination of FOS. FOS found that the Bank had been guilty of maladministration of my accounts: firstly because the living expenses allowed to me and my family in the assessments of 2008 and 2010 were below the Henderson Poverty Index, the accepted standard of living index in Australia; second because the serviceability assessments for the 2008 BetterBusiness loan did not accord with industry best practice; third because in both the 2008 and 2010 assessments the Bank had overestimated the business income, and that of my former husband.
FOS had found maladministration but the finding did not show that the Bank had knowingly made these erroneous assessments and had acted culpably. FOS erroneously found that both my loans were refinance credits.
On 25 August 2014 I received a further explanation of the FOS Determination as I had complained of the lack of coherence and merit in Tonti-Fillipini’s decision. FOS claimed that CBA is not obliged to accept a repayment proposal if it considers that I cannot pay off the existing debt in a reasonable timeframe. Yet the FOS determination states ‘MUST’ treat me as a person in financial hardship as a result of its maladministration. This letter also states that if CBA had acted as a prudent and responsible lender when assessing the application, it would not have advanced me the initial funds, nor the redraw facility, nor the funds to refinance my existing equipment finance loan. That is, all the loans constituted ‘asset lending’.
FOS also stated that, even though it was inappropriate for the Bank to sell its products to me, I had benefited from refinancing the existing liability at a lower interest rate. As such I could not be awarded any financial loss with respect to the refinanced portion of the 2008 Loan 1. This was a fundamental error as no part of Loan 1 was refinanced, but was a new facility provided to me by CBA.
This FOS letter also contained the 2013 Opteon valuation of $380,000 – seemingly legitimising that valuation. The comparison sale properties in this document were at the other end of town in a less than desirable location and bore no resemblance to my property.
The Final Determination by FOS in August 2014 gave me 28 days to accept or reject. Although its recommendations gave me a cut in the claimed balance of my residential loans (most were default interest charges that had been wrongly added to the accounts), it did not restore me to where I was prior to the CBA lending in accordance with FOS’s terms of reference.
I then had a conversation with FOS’ Tonti-Fillipini. I said words to the effect. ‘You have not put me back into the position I was before CBA became my lender, and you have not properly investigated CBA’s failings relating to the sale of Reuben Court, including forcing that sale when I had a good sale of Abbott Street ready to go through a good agent.’
Tonti-Fillipini replied, in effect: ‘I am a bit annoyed with the Bank over the Reuben Court issue, because it now appears it did not send to us all the documents from its agent regarding the real estate sale.’ I said ‘Why not require it to produce those documents now? I am the one who has suffered as a result’. Tonti-Fillipini replied, in effect, “FOS’s role is finished. Anyway FOS is too understaffed to chase up documents. You were stressed and wanted the inquiry finished and so did we. The inquiry had been going on for too long. I’ve re-read the file. This is one that now I feel physically ill over.
We did not restore you to your former position because we have treated both loans as being refinanced. FOS has made a mistake on this aspect. If FOS had not made these errors then the outcome of your determination would have been much different to what it was. I am sorry but there is nothing I can do to now change the Final Determination.’
I also emailed in August 2014 a CBA loans officer then dealing with the matter at Parramatta NSW, Amisha Singh, and asked what could the Bank do as there were mistakes in the FOS determination.
She replied, in effect: ‘Look, you either accept the Final Determination at which point the Bank would put the findings of the Determination in place but not before, and if you again default on this new loan amount, the Bank will foreclose on you and sell. Or if you do not accept, the Bank will begin legal action against you immediately to foreclose and sell.’ I replied: ‘You are giving me no real choice but to accept the FOS Determination. This is going to put me in default again.’ Ms Singh did not respond.
There seemed to be no justice for me even though FOS had found the Bank was in the wrong and that the bank had forcibly sold my valuable commercial property at a loss. I had lost my small business income from Café S and Crafty Critters in early 2012 and I had been placed in an impossible position financially, preventing me from repaying the Bank. Nonetheless I attempted to restart my Crafty Critters business in the remaining Abbott Street property, although this meant a loss of rent to me, I believed this would provide me with more income than rent with my newly refreshed website.
FOS failed to undertake and perform its mandate in accordance with its terms of reference. I was not restored to my former financial position as a result of the Bank’s misconduct and maladministration, even though FOS found in my favour. The FOS outcome only made my financial position worse, because it refused to treat me as a person in financial hardship, taking its cue from Robert Ralston (CBA Business restructuring Manager), and forced me to repay principal and interest that was unpayable. It placed me in a position that made it inevitable that the Bank would claim the rest of my property.
With no substantive help from FOS and no help from CBA I was forced to sign FOS’ Final Determination under duress. This was against my will, and my interests.
I continued to protest at the mistakes made by FOS and did speak with Tonti-Fillipini again on this matter. On 2 October 2014 the Bank put in place the FOS determination by varying the residential credit arrangement and opening a new account, all of which it did unilaterally and without my consent.
The CBA misled FOS on at least two occasions. The CBA’s Andrew Ronfeldt wrote to FOS on 15th November 2012, in response to a FOS request concerning the origins of the credit. Ronfeldt replied: “The Credit was used to refinance a debt owed to Westpac.”
On 21 October 2013 Mr. Patrick Dunnell (FOS) wrote to Ms Christina Grygiel (Customer Experience Manager CBA) in regards to the FOS understanding of my matter. Mr. Dunnell replied: “The proceeds of the Loans were used to refinance loans previously provided by Westpac Banking Corporation (Westpac)”. This was again false.
I protested to Tonti Fillipini and asked for the Determination to be reviewed. FOS refused. According to FOS staff and FOS’ terms of reference, once a Final FOS Determination is handed down it cannot be changed.
I was then informed that Ralston of the Sydney CBA Head Office “will assume management of your matter for the Bank”. I then served a hardship notice upon Ralston in late 2014, with a concrete proposal as to how I proposed to deal with my credit position, by email in relation to the FOS outcome and my continuing financial difficulties.
However my request was denied, twice. Ralston said “Your proposal will not pay the Bank’s debt in the required time.” Ralston has continually disregarded my hardship notices. Ralston has conducted a personal vendetta against me since that time, including personally signing the Atkins Removalist voucher for the wrongful removal of my unencumbered personal belongings. Atkins Removalists Launceston is the company that Mark Bushby of Bushby Property Group hired to remove personal property without my consent from my family home.
Ralston resides in New South Wales, and is to the best of my knowledge a registered credit representative of the CBA under the National Credit Code in respect of residential loans. I have served three hardship notices on him under Commonwealth laws (the Code) but he has rejected and taken no action on any of them.
As I informed FOS I was unable to afford the large repayments on the varied housing investment loan (at residential investment rates) which was left as a result of the FOS Determination. The Bank, directed by Ralston, foreclosed on me in January 2015 for a second time. I had not defaulted on the interest free loan that FOS had directed CBA to provide to me. This loan was part of the FOS determination whereby FOS directed CBA to split the remaining loan into two parts (one interest-bearing and one not).
After the second refusal of my request for Hardship, Ralston sent me a Deed of Settlement. This Deed said they would give me 3 months to sell all my properties and I must remove my business from the Bank. I still retained 3 properties: the family home (Elphin Road); the residential investment property (Abbott Street); and a beach shack property. I declined to sign this Deed, although it is referred to as step 8.8 in the FOS terms of reference in relation to the Determination, as it did not advance me in any way and required me to accept what I thought was a false and oppressive position about which I had protested to FOS and the Bank. Sections 8-7 of the FOS TOR states that if the complainant signs the determination it becomes binding on the bank (no mention of the complainant). 8-8 of the FOS TOR states that if the bank provides to the complainant a Deed of Release with all relevant details (amounts, dates, details, etc.) and the complainant signs it, the matter is then binding on both parties.
The Bank refused to work with me in regards to a suitable Hardship proposal and FOS failed in its role as a consumer banking dispute tribunal, both on behalf of banks which fund it and for ASIC to which FOS reports acting on behalf of the Commonwealth Government.
Tasmanian Court proceedings
On 14 January 2015 Patrick Lunn, Managing Partner Litigation & Dispute Resolution (sic) of Simmons Wolfhagen – masthead ‘progressive legal solutions’ (sic) – representing CBA, sent a Notice of Default to myself and my ex-husband. The payout figure of the Loan was then $311,536.84 and the amount of arrears was $3,896.00. I was given until 23 February to remedy the default. I served hardship notices on the Bank and Ralston in response to the Bank’s notice. I was unable to meet the payment and the Bank responded by outright rejection of each of the hardship notices, in breach of the process required under the National Credit Code.
Thereafter the Bank commenced an action for possession of both Abbott Street and Elphin Road in the Supreme Court of Tasmania. On 13 April 2015 Lunn filed an application in the Courts ‘Summons to Show Cause’. I prepared my affidavit to show cause, believing this to be the correct procedure. I rang the Court to ask what the process would be. I was told that it was a directions hearing and that I would not need to take any documents to that hearing.
In that hearing on 21 May 2015 Holt AsJ ordered me to file a Writ against the bank if I wanted to set aside or vary the loan contract or the mortgages. By doing this it stopped my ability to Show Cause, as is my right under the Lands Title Act 146.2 (which the bank was using to take possession of my properties). I was further prevented from Showing Cause when Holt AsJ ordered the Trial for 7 March 2016. I was appearing for myself on that day, being without funds, having lost my two businesses and the Reuben Court property and I did not understand that what Holt AsJ had ordered was incorrect.
I did not understand why I would need to start a new action (involving additional costs), as I believed I would be defending the possession order action. I clarified this with the Court system. The Holt AsJ order given to me was confirmed in writing by Lisa Reeve of the Launceston Supreme Court Registry. Accordingly, I issued my own Writ against the Bank in a new action. At this point I was still a self-represented litigant. The incorrect order made by Holt AsJ cost me in the vicinity of $96,000 as Justice Pearce then ordered that the costs of the matter on 7 March 2016 be taxed. I was given the opportunity to object late 2016, which I did (to all the costs based on the order being incorrect). This objection was not allowed and I was too stressed to sit for 4 hours and object to every cost knowing that the Court System in Tasmania doesn’t want to work with self litigants.
My rights under Section 146 point 2 of the Lands Titles Act of Tasmania have been disregarded by the Court and the CBA. I was wrong to be advised by the Court, with the support of the Bank’s lawyers Patrick Lunn and later Philip Jackson SC, that I had to start a separate action in the Tasmanian Supreme Court. My original understanding of the appropriate procedure, to show cause as to why my properties should not have been repossessed, was correct. This manoeuvre also put me at a serious disadvantage when dealing with the Bank’s lawyers and the Court. Starting a new action became difficult for me, and led to problems with lawyers that the Court said I should get so as to deal with the Court.
On 11 June 2015 I again appeared in the Tasmanian Supreme Court as a self-litigant and Plaintiff in Action number 532/2015 and as Defendant in action 256/2015. Again the proceedings were adjourned as I was told by the Court and the Bank that I had incorrectly asked that the proceedings be ‘Set Aside’ (i.e. the Bank’s credit arrangements and actions against me). The correct procedure, I was told, was to present an Interlocutory Application ‘to cause an injunction on the properties’. Holt AsJ then said I should have a lawyer for the next occasion and to draw up the required Interlocutory Application.
I retained the services of Fred Lester, solicitor from Clarke and Gee, for the Interlocutory Application. Lester prepared the Interlocutory Application and a further Affidavit, filed on 17 June 2015 and came before the Court on 22 June 2015.
Lester attempted to lodge a further complaint with FOS against CBA for its hardship refusal to effect an adjournment. I doubted this would work and it didn’t. After a short adjournment and some further discussions with Lunn, I was told by Lester, in effect, ‘The Judge is never going to allow this application to go ahead and that you must give possession to the Bank. The best thing you could hope for is a longer time to sell’. I asked Lester ‘Why then did AsJ Holt tell me on 11th June to put an Interlocutory application in to stop the sale of my properties?’ Lester told me ‘It was because the Judge had to be seen to be saying something and that he was never going to allow your injunction application to go ahead’. I was shocked and felt overwhelmed.
Lester then said ‘Your only way forward is to negotiate a longer sale period and in the meantime get your writ on for hearing against the Bank to stop the sale of the properties.’ I agreed to the orders for possession but on the basis that I would be able to have my complaints about the Bank heard in the time allowed as I had been told. Had I been aware that this was unlikely to occur, I would not have proceeded in this way on that day. Rather I would have sacked Lester.
In particular, had I been aware on 22 June 2015 of the nature and effect of the Bank’s conduct in 2008 and 2010, including its breaches of its own Code of banking Practice and of the Commonwealth’s consumer credit laws, I would not have agreed to these orders. Had I been told that I did have cause to object to the possession orders and that I could do so using the FOS Determination of maladministration, even though its ultimate conclusions were inconsistent and wrong, I would not have agreed to the orders for possession. I assumed from what was explained to me by Lester that the Bank’s possession orders were ‘usual’ and ‘a matter of course’ and my only hope was a later chance to argue against the orders in my new action, which turned out to be incorrect. The Court, the Bank and my own lawyer put me in a position where I had no choice but to agree with the Bank’s claim for orders for possession of my properties.
On 22 June 2015 Holt AsJ stated, in effect, ’Perhaps Ms Burge would like to keep her home. She might be able to run her business from the Elphin Road property and if the Abbott Street property is sold first, and CBA took a little breather she might be able to refinance the difference’. There was no recognition that I had a defence to the Bank’s claims under Commonwealth laws or the Land Titles Act of Tasmania. Lester was given a further 14 days to do an amended Statement of Claim and my previous one was struck out.
Lester then failed to file the Amended Statement of Claim on time. Many emails and phone calls to Lester were not responded to and proved fruitless. Finally on 30 July 2015 Lester filed an Amended Statement of Claim informing me that Lunn was fine with his late SOC. I, however, was not fine with this and told him so, as this was less time we had to have our Writ dealt with in the Supreme Court and to stop the sale of my Abbott Street and Elphin Road properties, as explained to me by Lester before the possession orders took effect.
Lunn of Simmons Wolfhagen then requested further time to file their defence. Lester emailed me to advise me of their request. I stated I could accept this as long as they either gave me further time to deal with the properties that were in possession or agreed to put a stay on proceedings until my Writ had been dealt with in Court. Lester said he doubted that they would accept my offer but said he would ask. I did not hear from Lester so I presumed that they had not agreed to the condition. On 23 August I instructed Lester to immediately proceed with my writ for Judgment to be made against CBA as they had not filed so as to protect my position. Lester replied he couldn’t do that because we had agreed to the extension. I had never agreed to this extension.
I never received a copy of the Bank’s defence from Simmons Wolfhagen and did not hear from Lester who was gnoring my emails and calls. I was forced to go to the Courts myself and ask if a defence had been lodged and was forced to pay for a copy of this defence on 25 September 2015. The defence of the Bank had been lodged on 31 August 2015.
I do not have any of the Court documents from this time as they were going to Lester but not being forwarded to me. I believe it to be the following week when we both attended Court (he failed to tell me of the previous Court appearance the week before) at which point Holt AsJ asked Lester why he had not replied to the CBA’s Jackson in relation to the ‘trial of other matters’? From memory, Lester was given a further 7 days to reply. The ‘trial of other matters’ was a trial that Lunn and Jackson had requested to stop my Writ from proceeding and again making it impossible for me to ‘Show Cause’ as I had a right to do under the Tasmanian Lands Title Act 146.2.
On 20 October Lester lodged a reply in the Supreme Court. He then received an email from Lunn stating that if he did not withdraw his SOC he would have him disbarred for using the word ‘Fraud’. On 26 October 2015 Lester lodged an Amended Reply that removed the word ‘fraud’.
Lester never represented me again in my matter. I believe he was put off by the ferocity of the Bank’s legal representatives. He did not give me the required 7 days notice as required by the Court and I was forced to defend on my own why I should not have the bank’s request for an additional trial prior to the hearing of my own Writ.
In November 2015 CBA repossessed the Abbott Street property, locking inside all my tools of trade and remaining stock from my business. This further severely restricted my right to earn a living, as I had moved from Reuben Court to Abbott Street my remaining business stock.
On 10 December 2015 I received the Defendant’s submission from Jackson. He effectively argues that FOS has no authority. In the UK FOS operates as a Court or tribunal but in Australia it does not. In the transcripts of the court 22 June 2015, Jackson states that “the terms of reference that the Ombudsman operates under are not statutory instruments, it’s purely an involuntary – it’s almost a contractual arrangement between the banks and the Ombudsman.” He also states “the FOS itself is not itself a Statutory Instrumentality either. It exists as a Private Company. It’s a strange arrangement, but that’s the way it is.”
Jackson was implying that FOS was irrelevant. I was confused. I also believed this contradicted Jackson’s reasons for saying to the Court that he wanted a trial of Other Matters so as to defeat my writ.
On 14 December 2015 I did not appear in Court due to illness. Jackson addressed Holt AsJ in a letter regarding this matter and made reference to a hearing on 21 December 2015. On 21 of December Holt AsJ ordered there be a ‘Trial of Other Matters’. I was again a self represented litigant on 21 December and my protests as to why this wasteful trial on 7 of March should not occur were refused by Holt AsJ.
I lodged a further application for an Urgent Interlocutory Application. On 10 February 2016 the hearing for an urgent injunction before Holt AsJ occurred to stop the sale of my Abbott Street property and to stop possession of my Elphin Road home. I attached new evidence provided as a result of FOS producing more documents to me that I had previously not seen and documents received from OAIC. I claimed that it would be wrong of the Bank to sell my properties when my Writ had not been heard. Naturally, I was distressed at the thought of losing my properties and struggled on the day.
I had further evidence that needed to be seen but had only been given one day to do an affidavit and get it in to the Courts. I believed that I was able to produce the documents in court on the morning of 10 February. This did not occur.
In the Court proceedings on 10 Feb. 2016, Jackson stated he didn’t need to see the evidence I wanted to produce and that he would (according to the transcripts): “make it clear from their submission that they didn’t challenge the basic notion that the plaintiff’s case, as it is pleaded, makes out arguable causes of action”. His Honour then stated “so, it’s conceded that there’s a serious question to be tried in the action?” Jackson then stated “potentially yes.”
His Honour then stated “Well, Ms Burge – Mr. Jackson will correct me if I’m wrong about this – but for the purpose of your application, he’ll concede that your writ raises causes of action which you have a realistic chance of winning. … So I think he’s saying, with that concession, you won’t need to present evidence to persuade me that you’ve got a realistic chance of winning, because he’s already agreeing that that’s the case”.
With these statements I declined to submit further evidence; in hindsight I should have continued and submitted the evidence. His Honour’s next statement disturbed me greatly: “Can I – can I just point out what’s been conceded isn’t that there’s a likelihood of success; what is conceded is that there’s a realistic prospect of success sufficient for the court then to weigh up various conveniences and hardships, depending on how things are determined. So, there is no concession that you’re likely to win the case.” This contradicts what Holt previously stated to me. Neither Holt nor the Bank made reference to Commonwealth laws, which gave the Court power to set aside the credit contract and mortgages.
Holt also said in his reasons “If an injunction is not granted the plaintiff can receive complete compensation if she succeeds in the action, and so would suffer no hardship by the refusal of her application.” His Honour then refused my injunction application. The Bank’s conduct was wrong and immoral, as found by FOS, and as formally accepted by Jackson. Yet I was being told that I was going to lose because my home did not matter to me, and that sometime later I might get some damages from the Bank, which was not on offer.
To remove someone from their family home of 25 years and to separate a 17 year old daughter from her mother and force them to live in circumstances of poverty terrifying for both, I felt was plain wrong. I felt confused and very disadvantaged, and that the Bank and the Court had taken advantage of me by not letting me run my case, even though obliquely conceding that I had a good case against it. I had been ‘thrown to the wolves’.
Sale of the Abbott Street Property
On 10 February 2016, in between the morning hearing for an injunction and the final decision at 3.00pm, I was contacted by a prospective purchaser for the Abbott Street Property who noted that I still owned a small piece of the Abbott Street property and that the Bank did not have a mortgage over this piece of property. I found my paperwork from my purchase in 1991 and discovered that this was correct.
I took the paperwork back to Court and asked why the Real Estate Agent, the Bank or the Bank’s solicitors had not informed me of this from the beginning. Obviously if the property was going to be sold, to join with me in regards to marketing would have meant a better sale price. The title that I owned that was unencumbered was the start to the driveway so prospective purchasers would need this part of the title to access the driveway. It also housed the water meter.
Abbott Street was then sold under value by the Bank. The property, in a prime East Launceston position, should have gone for $340,000 to $350,000. The property sold for $282,000 and, after deductions by Lunn, I was credited $242,000 which was taken off my loan account. I still own the small parcel of land in East Launceston and the property at Abbott Street has sat vacant since settlement date, mid March 2016. The CBA again breached the Corporations Act 2001 – Sect 420A
I lodged a further complaint with FOS in regards to the sale of the Abbott Street property. The complaint made it through to the Case Manager process. This process is meant to stop Court Action (including that regarding the possession of my home). However the Bank (via Ralston) then contacted FOS without informing me and advised FOS to stop consideration of my complaint as it was before the Court, which was the ‘most appropriate place’ for this complaint to be decided.
This claim was erroneous as the matter of sale under value was not before the court. FOS nonetheless then deleted my complaint and Wes Pan (legal advisor FOS) told me in writing (early 2016) to never lodge another complaint with them or they will delete the complaint without informing me that they have done this.
Repossession of 127 Elphin Road (my home)
On 26 February 2016, after the forced sale of Abbott Street, I contacted Chris Nason (Registrar and Sheriff) at the Supreme Court Registry and asked him ‘if I could refinance and was able to pay in the difference between the Default and the amount the Abbott Street property had sold for, would that be sufficient to stop the possession of my family home?’
Nason replied, in effect: ‘I feel it would be and that it would be unreasonable for the bank to expect you to pay in the full amount of the Default’. I stated that ‘I was finding it difficult to obtain a payout figure from the Bank after the Abbott Street Property had been sold.’ He offered to get the payout figure for me, from Lunn. He rang me back and stated Lunn had said that ‘The possession process would still happen the following day at 2.30pm, as CBA has refused to give me the payout figure and to allow you to pay the difference into the Courts and has required you to pay the full amount of the Default.’
At 2.30pm on 26 February the Deputy Sheriff, a Bank representative and a Locksmith arrived at my home.
I had barricaded myself inside my home. I was fighting the possession order because it was illegitimate. I would be forced to live separately from my daughter for the first time, and I would have to move some 2 1/2 hours away as I could not afford to pay rent in Launceston and we had family pets. I was unable to store my personal items anywhere. My home also included all my remaining business items from the business I lost in 2012 when CBA took my commercial property and again took and sold Abbott Street. I had tried to do everything possible to stop the bank’s wrongful possession. I was forcibly ejected with my distressed daughter in the most humiliating way. Please see You Tube ‘Suzi’s Eviction’.
I was concerned that the Bank had obtained possession of my property before the Court had decided my show cause action as to why possession orders should not be made, as was my right under the Lands Title Act Section 146.2 This should have occurred in May and June 2015.
I say Holt AsJ erred in law in regards to ordering me to start a new action against the CBA and that Chief Justice Blow erred again in law by failing to allow me on 4 November 2016 an extension of time to appeal (again to save my family home). The Supreme Court of Tasmania wants my case shut down and is content on awarding costs to the other side without my show cause action ever being heard. It is noteworthy that Chief Justice Blow had presided over Phillip Jackson (CBA barrister) being appointed as SC on 15 April 2015.
7 March 2016 Hearing
I was then concerned as to what to do about the ‘trial of other matters’, my show cause action referred to by Holt AsJ and fixed by him at the Bank’s request in December for 7 March. A fellow bank victim recommended that I should contact Melbourne-based James Kewley SC. I contacted him by text on 16 February 2016 and had a brief telephone conversation with him soon after. Kewley gave me his fees verbally. He did not at any time provide to me a costs agreement. I did not contact him again as I did not have the funds that were needed to fight this matter as CBA had removed for a second time my capacity to earn a living.
On 2 March 2016 I had an appointment with Clinical Psychologist Rosie Bickel. She confirmed that I suffer from severe situational stress, anxiety, and depression. I scored in the severe range on all scales (DASS; Lovibond & Lovibond). Since then, I have been in constant therapy with XXXXXXX XXXXXXX, Counsellor with Counselling & Consulting Services Tasmania in St. Helens, nearby.
On 2 March 2016 I went to the Launceston Supreme Court to apply for an adjournment from the 7 March 2016 Trial as I was severely distressed after my home was repossessed and I was forced to leave my daughter in Launceston to stay with friends as she attended school there. I also stated to the Registry that relevant Court Documents had been locked inside my home and that I now lived over 2 hours away and it would be difficult for me to get back to town. The Court asked me for my mobile number.
The Court hearing then took place on my mobile phone in my car that day. The adjournment was declined with Justice Pearce stating I had had ‘plenty of time’ to prepare for this hearing. Justice Pearce had informed me and the Bank prior to this hearing that he had previously been my Solicitor, but he thought he could be fair. I now believe Justice Pearce should have stood down.
Justice Pearce’s decision to not allow an adjournment under the circumstances left me in a vulnerable position for the 7 March trial.
On 3 March 2016 I had a text from Kewley asking me did I need legal assistance? Distressed, I contacted Kewley back. A friend had agreed to loan me money for legal fees as I was not able personally to deal with any Court matter on 7 March 2016. I asked Kewley could he apply for an adjournment because he would not be familiar with my matter. I felt this could have been done by video link from Melbourne.
He advised me he would need to fly to Launceston for the day. I would need to deposit $6000 into his account plus airfares and accommodation. A friend deposited $6,000 into his account and I paid for the airfares and accommodation.
On 6 March 2016 I collected Kewley from Launceston airport late afternoon. I had all the documentation that I had managed to put in my car before my house was repossessed. We went to his lodgings and found a room suitable to display all the documents. Mr. Kewley commented on what good evidence I had and we spent several hours going over my evidence.
The morning of 7 March 2016 I picked Kewley up and we proceeded to Court. The Trial was adjourned by the Court for a round table conference between the two parties. The conference did not start well, with the CBA legal team refusing to mediate or discuss any other matter other than the Trial we were there for, and the fact that they believed the FOS determination was irrelevant. I could not see the point in mediation if it wasn’t to mediate the whole matter.
Kewley spent time with Jackson and Lunn whilst I was made to wait in the conference room alone. I was not party to any of these negotiations. My instructions to Kewley were to seek an adjournment and as to what would be acceptable in my matter were clear; however I felt that they were not being met by the Bank.
When Lunn was advising amounts that the Bank stated was owed under the current mortgage to CBA in our conference early on 7 March 2016, the amount Lunn stated what I owed was over $30,000 more than what my account was showing and over $30,000 more than the default. Lunn said he would contact his client and find out what the added charge was.
Kewley then joined Lunn and Jackson on his own. Kewley came back from that meeting and stated that the mediation was working as he had ‘made’ the $30,000 plus amount ‘Go Away’. I stated that he didn’t make it go away because it should never have been there in the first place.
CBA barrister Jackson had conceded in Court, 10 February 2016, that it was probable that I would win this case. Moreover Kewley had acknowledged that my evidence was very good and I had a reasonable chance of success in a Court of law. FOS had also found that the Bank had engaged in maladministration of my accounts. Therefore I could not understand the delay or apparent confusion about my case.
I had shown Kewley the Terms of Reference from FOS believing that he would be familiar with FOS. I pointed out clauses 8.7 and 8.8 of the Terms of Reference that I had been relying on and pointed out that neither of these points state that by me signing the Determination it would be binding on myself. The document had also been signed and labelled ‘Under Duress’ (and undated). Kewley stated that he didn’t believe I was right in regards to 8.8 of the FOS Determination and flicked the paper aside.
I have now had independent legal advice in writing that I was correct to object to the FOS Determination and with good cause. Law Adviser Advice May 1 2016 states: “If you did not sign a release in favour of the bank, then you arguably did not properly accept the Determination in accordance with the FOS Terms of Reference, rendering it not binding. In any case, and regardless of the fact that the Determination may not have been properly accepted, decisions of the FOS are not binding on applicants such as you. This means you still have the right to commence legal proceedings in a court or take any other legal action available against the bank.”
I also have a letter from the Commonwealth Treasury (Megan Quinn) on 16 February 2016 stating the following “It is important to note that while determinations made by the FOS are binding on financial service providers, the FOS’ decisions are not binding on you as a complainant. Your private rights of action therefore remain and as such, you are free to seek recourse through the court system should you be unhappy with the EDR process.”
I protested to Kewley at the figure of over $450,000 that CBA wanted from me on the day, not least because the CBA should be compensating me. The figure they were demanding would be impossible for me to find. However Kewley continued to state that this was a ‘good deal’. He did not want to understand that as CBA continued to lock up the tools of my trade for a second time that I would have no income to pay a loan of that nature. It appeared that Kewley just wanted to get a deal done and move on.
When I was presented with a Deed of Settlement (DOS) on 7 March 2016 by Kewley and Jackson I did not want to sign as it did not advance me in any way and I was given no time to consider the contents of this Deed of Settlement and Release. They refused to explain to me how the amount in the Deed worked or to give me an exact amount. This left me open to erroneous and endless claims by the Bank.
On 7 March 2016, late afternoon, in the Jury lunch-room we had still not reached a fair and reasonable settlement. Jackson then said words to this effect in my presence: ‘You are the precedent case and the CBA Bank and the Banking Association had stated that they would throw any amount of money at this Trial to win it’. He stated that even ‘If you win the Trial on the day, we will appeal the decision and continue to appeal until we win’.
I asked to see Kewley outside and stated to him that I had been threatened. He again claimed that he thought it was actually a good deal, even though the previous evening he had stated that I had really good evidence against the Bank.
He stated that he did not believe the Judge would adjourn the matter and that he was not going to go in there unprepared and attempt to deal with this matter by hearing it for me. He said he would ‘step down as my Barrister, and I would then need to put $20,000 into his bank account the following day and only then will he step back in’.
We then went back into the Jury lunch-room whereby Kewley stated that his client felt that she had been threatened. Jackson then started again. He said ‘I am sorry that you are the precedent case but we are just trying to save you money as the Bank and the Banking association have access to endless amount of funds to throw at this matter. If you don’t sign the Deed you will basically have nothing left because we would continue to appeal until we won.’
They were prepared to do anything to win this trial. I questioned why the Banking Association was party to these proceedings? The Banking Association forms the CCMC (Code Compliance Monitoring Committee) which, coincidently, shares a phone number with FOS. However CCMC state they are nothing to do with FOS.
On 13 January 2017 I received the following email from the ABA. “Dear Ms Burge, Thank you for your email. The Australian Banker’s Association did not have any involvement in the proceedings that you refer to. If you have concerns we suggest you raise them with the bank directly”. I now question Jackson’s motives for making further false and misleading statements to me.
Initially Jackson had stated that the 7 March trial would effectively save the Court’s time (presumably why Holt AsJ listed the Trial). Jackson had previously told the Court in late 2015 that if CBA were towin the 7 March trial, it would effectively stop my Writ from proceeding. This trial should take one, possibly two days. However if my Writ was allowed to continue then it may take five, possibly six days. I now question the statement made to me by Jackson on saving the Court time. I also now question the fact that this trial had the potential to again stop me from showing cause in my matter as was my right under Section 146.2 of the Lands Title Act.
The Deed of Settlement and Release
Scared and extremely stressed, especially at the thought of again representing myself in Court and the fact that they had told me they would continue until I had nothing left, I felt extremely pressured to sign the Deed of Settlement and Release. CBA Legal team took advantage of my vulnerability and used undue influence and false statements to force me to sign on 7 March.
It was not until sometime later that I discovered that Kewley had previously acted for the CBA. He did not inform me of this, and I felt betrayed.
Had I been aware at the time of the nature and effect of the Bank’s conduct in 2008 and 2010, and the full extent of the Bank’s wrongful conduct in relation to the FOS Determination, I would not have agreed to the Deed dated 7 March 2016. The Deed only served to absolve the bank for its corrupt actions.
The following factors show that the Deed was unconscionable and I am seeking that it be set aside:
(i) State of Mind – Under Duress. I was in no fit state to be in Court on 7 March 2016 and had applied for an adjournment with Justice Pearce on 2 March 2016. That adjournment was denied.
(ii) Barrister James Kewley SC. I engaged the services of Kewley for the Trial of other Matters on 7 March 2016. I discovered belatedly from Kewley’s Victorian Bar Profile that he has acted for the Commonwealth Bank. I would not have engaged him had I known this.
(iii) Philip Jackson’s threatening statements to me 7 March 2016 in relation to the ABA’s involvement with my matter and the amount of costs that had already been racked up by CBA’s legal team, which I now find to be false.
(iv) The Results of the Deed of Settlement and Release. The DOS is unconscionable in its terms and in its making. Clause (6) States that I must remove all complaints to the Financial Ombudsman Service, the OAIC, ASIC, Tasmania Police, the Australian Federal Police, and any State or Federal authority. If CBA believe they had done no wrong then they would not need me to remove complaints to these departments. Clause 5 states that I cannot take action against the Bank ‘Past, Present or Future’. This means that CBA can harm me in any way and yet I cannot get restitution for this harm.
This is an oppressive clause, as is most of the Deed of Settlement and Release. No one who has viewed this Deed is able to understand how this was a good deal or in fact that I was advised to sign it. I proceeded under a misapprehension as to the amounts due to the Bank and was not informed of the possible application of Commonwealth laws that would support my case. My legal advice was incorrect and I put this down to the conflict of interest of the Barrister I had engaged.
I have since had time to question the final payout figure that CBA solicitor Patrick Lunn of Simmons Wolfhagen told me at the round table meeting would be required to give me back possession of my family home. This amount was $452,469.71 (which includes agreed costs of the action), less the net proceeds of the Abbott Street sale. On 18 March Lunn sent me a letter stating that I owed $209,651.00 to finalise my accounts with the Bank. This was approximately $9,000 over what I was told to expect it would be on 7 March 2016 and included not only Abbott Street charges, but inflated Conveyancing Costs and insurance for Elphin Road (not part of the Deed).
I have since looked behind the $209,651 amount and find no justification for it. The correct figure, giving the Bank the benefit of doubt, is more like $80,000 (as the interest free loan has not been demanded). My Loan account, once the Abbott Street proceeds were paid into my account, show a figure of $87,360.65 owing as of 18 March 2016.
Moreover, Lunn’s net proceeds of sale figure and the amount paid into my bank account as net proceeds of sale also differ. I then took from the $209,651 amount, and removed the newly funded interest free loan, required by FOS in its 2014 determination. This loan is up to date and has never been demanded in Court, but CBA also required this amount to be paid out. This amount is $66,195.45. I added the $87,360.65 amount to the loan and the $50,000 that CBA wanted in legal fees. This amount is over $6,000 out from what Lunn gave to me as a payout figure to save my family home. The Lunn figure is erroneous, and Lunn has continually declined to explain this amount to me.
Another threat that Jackson used to bully me into signing the Deed was that the legal fees racked up by the action that Holt AsJ had ordered me to start if I wanted to set aside or alter the mortgage contracts, was well over $100,000. Jackson made a deceptive and misleading statement to me on that day as the taxed costs were $86,000.
There are also inflated charges. Two of the inflated invoices on the Abbott St. Settlement account are Conveyancing Invoices @ $4295.00 and $795.03, which were apparently for the Abbott Street property alone. On the letter given to me by Lunn in regards to conveyancing costs, I was charged $6283.90. However the two Invoices for conveyancing given to me by Lunn only add up to $5090.03.
I have also questioned the more than $41,000 (which has escalated in recent months) in charges on my loan account since the payment from the Abbott Street sale into the Loan Account. On Friday 26 August 2016 I was finally given a list of invoices for that period. These mainly consist of further legal fees. To this date the charges have constantly increased and I have not been given invoices of charges to this date (they are simply noted on my loan account as Fees).
I have also been charged insurance (CBA MIP) in regards to the Elphin Road property repossession by the Bank for $3,736.99 for a six month period of insurance. Yet the Insurance has been charged at $3,482.20 on my account (presumably still for 6 months). I have no idea why Lunn would give me a quote but not a copy of the insurance policy, or why I am the one paying for it when the Bank has my property. My personal insurance for my property with Shannon’s Insurance is for a 12 month period is only $527.08 – for which I have my home insured for $844,300. I question the validity of the CBA insurance policy, which is through the Bank’s own insurance company ‘Comminsure’, now exposed as a location of corrupt practices.
I am also aware of damage to my home since CBA took possession. It has lain empty for a considerable amount of time and is still empty in 2017 and has been since 26 February 2016. What is the point of expensive home insurance when my home is being dismantled?
Atkins Removalists advised me that spotlights used in my daughter’s bedroom were on when they arrived on 6 July 2016. This had the potential to cause fire, as did a leaking hot water cylinder that had not been turned off and a mysteriously turned on hair appliance in my daughter’s bedroom which was smouldering on a desk. I turned off all power points in the house before I was forcibly removed from my family home.
Attempts at Refinancing Thwarted
Immediately after the DOS of 7 March 2016 I sought to refinance before 18 April 2016 to save my home. On 8 March 2016, through Aussie Home Loans, Simon Nesbitt of Aussie made enquiries for me with potential finance companies and believed he could put the finance through prior to 18 April.
I complied with every request by Aussie Home Loans to ensure that I got the refinance. I believe that my loan to refinance was close to finalisation when prior to 15 April Nesbitt told me that Aussie had ordered the final valuations to be done on the property (and which loan I was told was ‘approved’ pending valuation on the property). I waited for the final approval letter to come through from Aussie, which both Nesbitt and I fully expected.
However I was later informed by Nesbitt that after 15 April 2016 he had had a discussion with Lunn for the purpose of discussing a possible extension in time for the refinance then set for 18 April to occur. Both persons did this without my agreement or knowledge. A further three-way conversation between Kewley, Nesbitt and Lunn had occurred in regards to my loan and without my authorisation or knowledge. This would be a further breach of the Privacy Act.
Nesbitt had informed Mr Lunn which company the finance was to go through. But the CBA owns 80% of Aussie Home loans (which I did not know at the time). I sent Nesbitt a message and informed him to the effect that ‘I fully believed that the finance would fall over now as he had revealed the refinance arrangement to Mr. Lunn and that because CBA and its legal team stood to make a good deal of extra money if the Deed of Settlement and release were not executed by 18 April 2016 they would wish to undermine and stop the possible refinance’.
I believe that CBA knew that there was a possibility, in spite of my assets, that the loan would fall over and that I would be unable to refinance if it alerted Aussie to my lending history with it. That is the only explanation for CBA getting quotes to take my furniture away with a quote done on 28 April 2016 (with uplift on my goods scheduled for 7 of July 2016 (just 2 days after the extended date).
The proposed extension to refinance until 6 May 2016 and then a further extension granted by CBA General Counsel David Cohen until 5 July 2016 were smoke screens in order to put CBA in a favourable light with an attempt to make it look like they were doing the right thing.
I believe the CBA through Lunn and Ralston then caused my refinance with Aussie to fall over and be abandoned by representing to Aussie that I had previously complained to FOS over my CBA residential loan, and that I would do the same again to it with respect to Aussie as the new lender.
My 2016 refinance arrangement failed on about 18 April, and CBA charged me a large sum for legal fees and expenses. The bank then entered consent orders on 20 April 2016 (as per the deed but without me actually consenting) with the Court, without telling me. CBA wrongly told the Court that the orders were by consent. CBA did so in circumstances where it had interfered in the refinance I had all but finalised with Aussie, as a result of which the DOS term failed and I would be asked to pay another $50,000 in Bank legal fees dictated by Lunn.
The refusal of CBA to accommodate a customer who had responsibly sought to find alternatively lenders, and to cause the loss of the alternative finance was unconscionable. It was also a breach of at least clauses 2 and 25 of the Code of Banking Practice.
On 6 June 2016 my ex-husband wrote to the Child Support Agency “I have spoken with the Bank, as my name is still on the particular loan in question. Susan has never removed my name, as ordered by the Family Court. [Etc.]” The Bank was now saying ill of me to my former husband, consistent with its conduct in relation to Nesbitt and others. My ex-husband remained on the loan account as CBA refused to remove his name when the FOS determination was handed down and I was unable to refinance even though I tried with Aussie Home Loans.
When the Kate Carnell Inquiry into banks asked CBA why they did not attempt to get payment from my ex-husband, CBA stated that they had been unable to contact him. CBA had my ex-husband’s mobile phone number, addresses and Work Details. This is clear from the documentation given to the Child Support Agency.
The Bank breached the Privacy Act by discussing the refinance of my own home with my former husband and the fact that I was having difficulty refinancing.
The Bank had already organised for the possession order on my own home prior to the sale of the Abbott Street property. CBA was intent on stripping me of all my assets by using its superior position as security holder and its access to the Court system to make sure that I ended up with nothing. All of this was done by deceptive means.
I sought to refinance again in or about early May 2016 through another local broker. On this second occasion I sought refinance for a larger sum of $260,000. The broker told me he was fairly confident the refinance would be approved, but again that did not happen.
The conduct of CBA in restricting me from finding a way out of my financial problems, and retaining me on its own books at my expense is a breach of my credit contract and is unconscionable. This has been the case since the first day I was having difficulty with the repayments.
In late July 2016 when attending my house to collect mail, I noticed all my house plants, personal items and some stock had been thrown on the front lawn. I went back the next day with my daughter to collect what was smashed. The side window in the front door had been smashed from the inside. I rang the police and they advised that they would patrol the property to make sure that no one entered. I advised Lunn of this damage and it was not fixed for many days.
I also reported to Lunn that a garage door had been left open, giving access to a valuable car and he refused to make sure that my property was secured for weeks on end. Atkins employees also did nothing.
Removal of my items from the Elphin Road Premises
I had until 5 July 2016 to refinance my property. On that day at 6.30pm, Lunn emailed me to advise that as I had not refinanced in time the contents of my home would be removed. The personal property in the premises belongs to me and has not been the subject of any credit contract or security with the bank. Removal of my property on 7 July 2016 had already been organised in the Atkins quote obtained by Mr Ralston on 28 April 2016.
On 6 July 2016 Atkins removalists commenced to remove my items. I went to the property and advised Atkins that the police had stated that Atkins should inventory all items removed to cover themselves. Rather Atkins employees called the police as I had taken photos as evidence of the removalists taking my items.
The same day I attended Launceston Police Station to file a Police report for stolen property. CBA agents were allowing my mail to be left hanging from my mailbox. My trees had been cut down and my personal items from the front yard had been removed. These events distressed me greatly as the trees had been given to me as a gift some 15 years earlier. This was a senseless act of wilful destruction of my personal property.
It took Atkins Removalists four to five men and twenty one days to pack up my personal items. They packed them into 6 containers.
Ralston’s name appeared on the Atkins removal and storage quotation. He knew that I had not mortgaged or secured my personal property to the Bank or anyone else, and I had not consented to its removal or placement at my cost in Atkins warehouse. The quotation stated that the removal would happen on 7 July 2016. Yet the Bank claimed that it would give me until 5 July to refinance. Clearly the Bank and Ralston had no intention of permitting me to refinance, but instead watched and waited for me to go under.
My daughter and I had also gone to the back gate after the removalists had packed up most of my personal belongings and discovered personal items trashed all over the back pavers and deck. The police weren’t any help.
On 22 July 2016 I went to the St. Helens police station to lodge a further complaint in regards to further wilful damage and possible theft. These were items that had previously been stored inside my home – all damaged and/or water logged. Stock that had been secured under tarpaulins and inside had been left to the elements and ruined. CBA deemed these items to be ‘Rubbish’.
The contents of my family home have now been packed into six containers. Lunn ransomed my items for over $15,430 plus weekly storage of $440 per week in a letter stating that if I didn’t pay within 14 days they would dispose of everything I owned.
As I am on New Start and can barely feed my daughter and myself, I found this claim to be devastating. After I wrote to several politicians across Australia, complaining about the Bank’s conduct, Lunn changed his position to ‘You are at liberty to remove items at Atkins Removalists.’ This position later changed again. When I tried to organise to collect my items, I was told that they would need to be collected in one go – impossible. I was then told that the items would be delivered for me (at my cost) – unaffordable. I said I would nominate what items had to go where. I was told that I could not ‘cherry pick’ what items I wanted where. I have had only two sets of clothing now for over six months and really wanted immediate access to my clothing, medication and my daughter’s items.
I have been gradually collecting the items from the Atkins Removalist Storage site and it has been a traumatic experience for both my daughter and I. Most of the boxes are marked with ‘RUBBISH’ and I was told that was what they were told to write on the boxes. Items in the boxes are all smashed, clearly having been thrown in the boxes rather than packed. My business stock (worth between $150,000 and $200,000) is mostly ruined. I now have no hope of starting my business up again. My antiques have chunks out of them. My jewellery boxes were emptied into cartons with most jewellery destroyed or parts missing. When a heater was pulled from the container with the legs broken off it and ruined, the Atkins Operation Manager Dean Allen stated that it was only ‘cheap shit’ anyway. And so on.
To this day I am still being charged the storage fees, have already been charged the pick up fee and am finding it hard to collect the rest of my damaged items as I am traumatised at the thought of going back to the Atkins Removalist yard and finding my items destroyed. I have asked CBA to get the appropriate forms for an Insurance Claim and they refuse. When I asked Lunn who would pay for damage and stolen items, CBA or Atkins (CBA refused to take out insurance), he said: ‘Miss Burge, none of your items have been smashed, trashed or stolen’.
Letter to me from the Code Compliance Monitoring Committee
I have complained extensively to the CCMC, starting from 2014, although it apparently ‘lost’ all my documents and the person dealing with my case ceased to work there. The third time I rang they refused to do anything about the bank’s actions because the matter was in court. When the matter was out of court they briefly looked at it. On 31 August 2016 I was sent a letter noting “The CCMC is unable to investigate your concerns – the twelve month rule”. I did not realise that the CCMC is run by the ABA. It appears that no one is safe and I could never win. They have you covered at every point. Right or wrong the Bank has you.
Recently I had the courage to read the second page of the letter from the CCMC which states:
“Although the CCMC concluded that it could not investigate your concern, it noted that FOS’s Determination identified that CBA had engaged in maladministration in lending when it provided you with the two loans. … CBA has confirmed that the Ombudsman’s Determination means that its decision to provide the loans to you did not meet its ‘Provision of Credit’ obligations under the Code.
Accordingly the bank has reported that outcome to the CCMC as a breach of the Code.”
The effects of the wrongful actions by CBA
Attempting to represent myself in the Supreme Court of Tasmania has left me vulnerable and at a severe disadvantage, causing extreme stress.
My daughter and I were forcibly removed from our own home on 26 Feb 2016, causing severe hardship to us both. My daughter has suffered severely and has struggled to attend year 12 in College. I have since put her into TAFE, but unfortunately the same is happening. She may never go back to school to finish an important part of her education. CBA, combined with Holt AsJ and the Tasmanian Supreme Court, are to blame for this. She now believes that moving elsewhere is her only solution to the pain she has been forced to endure; she can’t bear to drive past our family home and I also find that hard. I have informed CBA on several occasions that if anything happens to my daughter because of their heinous actions then I will hold them personally responsible.
At times the pair of us have been forced to live on just $548 per fortnight as my ex husband saw fit to take steps to have her Child Support removed that he was paying on the basis that we were not together all the time. This act caused my Family Tax Benefit to be removed. I was then forced to go to Anglicare for food vouchers for both of us and for petrol vouchers to get back to town. I have learnt to live on very little food and unfortunately my daughter is doing the same thing.
I have medical issues that I have not been able to attend to due to the lack of funds and the continual need to drive two hours for appointments. These medical conditions have now worsened as a result of CBA’s unconscionable actions.
My daughter and I have been tortured by CBA officials, making it hard to even get simple things such as medication, clothing, family photos and personal belongings. This has been extremely hard on my daughter as this is the only home she has ever known. We feel like we have been raped and pillaged by having strangers sift through our belongings, destroying them and stealing from us. Under appropriate circumstances CBA employees and its agents would be prosecuted if not gaoled.
In the credit analysis made by CBA in 2008 CBA misled me and engaged in what was described by FOS to me as asset lending. It was prepared to provide a financial product which it knew was not affordable or suitable for my finance purposes and was prepared to do so because it was covered by my asset position secured by mortgage.
CBA then manipulated the income and expense figures to suit its lending decision, without reference to my true financial position or the consequences to me.
It was misleading by the Bank to represent to me in 2008 and 2010 that its loans on the terms dictated to me were suitable for my purposes when it knew that I could only comply with the contract interest and costs regime with substantial hardship or by having the credit limit increased during the loan period,
As a result I have fallen into a spiral that has led to the loss of my family home and personal belongings, my marriage and family, my business, my self-respect and social worth and everything I hold dear,
The Bank’s conduct has left me devastated: in the Supreme Court and the Court’s complicity with the Bank’s approach of not letting me show ‘just cause’ under the Land Titles Act s146.2 as to why a possession order should not be made, but instead making possession orders without hearing my grievances against the Bank, and demanding a separate action which they then wedged me out of any hearing on the merits by bullying tactics in January and March 2016, and later by getting an order from the Court on 20 April 2016 without my knowledge or agreement, and breaking its contract with me.
Supreme Court personnel have disregarded Commonwealth laws affecting my position in hearing my injunction application in February 2016 when dismissing my application, as did the Court and the Bank’s lawyers in March and April 2016 in rejecting my attempts to have my action heard.
Breaches of the National Credit Code, particularly the hardship clauses, and of the National Consumer Credit Protection Act 2009 ss128 & 131, by the Bank in 2014, and its undermining of my attempts to refinance in 2016, have made my losses worse.
The loan application of 2010 which brought my family home under a CBA mortgage was prepared by the Bank and not shown to me. It stated that the commitment level was 142%, and it was clear to the Bank on these figures that my credit arrangements with the Bank were structured to fail, as they did. This refinancing procedure was a transparent vehicle to gain security on my family home and to steal my home from me (a procedure noted in other cases of small business customers defaulted by their bank lenders).
When CBA resumed Reuben Court, my income source and the location of my small businesses, instead of taking Abbott St as I requested, it destroyed my asset and revenue base. This made my later losses and failure inevitable. The Bank’s conduct in refusing to work with me to mutual benefit in this period was unconscionable and the process itself fraudulent and a breach of the Code of Banking Practice and of the Corporations Act.
Contrary to what the Bank’s General Counsel David Cohen said in his 25 November 2015 letter to me justifying the Bank’s position, or in his evidence to the Commonwealth Parliamentary Joint Committee into The Impairment of Customer Loans on 4 April 2016, my case is more than just a sad case in which the Bank had no obligation to me. I have been grievously wronged, as found by FOS, as accepted by Jackson, and grudgingly by Mr Cohen to the Parliamentary inquiry, yet the Bank shuts its eyes to any legal or even moral responsibility.
My claim includes damages. However compensation alone cannot put me and my daughter back into the position we previously enjoyed before the Bank’s criminal conduct alone because my family home and personal belongings, built up over 25 years, cannot be replaced in money terms and the relationship between my daughter and I will probably never be returned to where it was.
On Monday 22 August 2016 the Bank informed me that it had fixed Elphin Road for sale on 23 September 2016. I promptly put the real estate agent ‘Bushby Real Estate’ on notice that to sell my property is wrong as there are current legal actions in regards to this and other property. Bushby Real Estate continued with the sale of my property. It was auctioned under most unusual circumstances. No contracts or information were handed out on the day. Bushby’s solicitors Rae and Partners were present at the Auction. The property was sold at auction significantly under value.
According to Lunn they gave the purchaser an extended time to settle (namely 60 days to 22 of November 2016). This does not happen at an auction. The purchaser was then given a further extension to settle (22 December 2016). It is only now that a large skip is parked out the front of my family home, obviously to remove the contents of a Heritage property that should be preserved. On 21 November 2016 (the day before the first settlement date) I put CBA, CBA solicitors and the real estate company on notice that any transfer of title on my property was wrong and I allege deceptive and misleading conduct in regards to this and other properties I own. They continued to ignore my request to cease transferring title until my matter is heard in a Court of Law.
We believe that the Tasmanian Supreme Court of Tasmania has acted contrary law (namely not allowing me to show cause as was my right under Section 146.2). We took our matter to the High Court, which informed us that we must go back to the Tasmanian Supreme Court to appeal. The Federal Court in Sydney has made the same ruling.
On 4 November 2016 we came before Blow CJ in the Tasmanian Supreme Court in regards to an Urgent Hearing for a special leave to appeal. Blow refused, in spite of knowing that mistakes were made by Holt AsJ. Appealing his decision in Tasmania would be fruitless. We would never be given the right to a fair hearing in the Tasmanian Supreme Court. I have now continually requested transcripts of that Court appearance on 4 November 2016 and all my requests have been ignored.
On 19 December 2016 we came before Judge Foster in the Sydney Supreme Court in relation to my matter once again. My current barrister Peter King asked that Judge Foster excuse himself as he had already refused our application previously. Foster refused to excuse himself. The decision is reserved and we are still waiting on our right to a Fair Trial as is my right under the Humans Rights Act.
Lives have been destroyed and will never return to where they were. The Courts protect the perpetrators and the innocent are sent to a life of hell! Hopefully whoever reads this will agree that Justice must prevail.
As a notable Barrister once said: “As Per Lord Denning ‘Fraud Unravels Everything’”.
On 31 January 2017, Patrick Lunn, CBA solicitor, sent to me a final statement of sums arising from the sale of my properties and a list of claimed costs associated with those sales.
To remind the reader, with AsJ Holt's wrongful order that I start a new action against the bank to set aside or vary the mortgages came a Legal Bill of $86,065. I still have not had the chance to show cause in my matter but I was ordered to pay all costs. That outrageous charge is the first item in Lunn’s letter.
The theft continues after the sale.
The sale of my family home (Elphin Road Newstead) came with added discretionary costs added to the costs of all my other property sold off in fire sales.
I was charged $14,623.15 for the possession action. The costs to prepare my home for sale came in at $77,079.24. Yet the home was sold totally unprofessionally and the price obtained way under value.
Fees and loan interest continued to be charged on the Elphin Road property after the settlement on 23 December 2016.
Some of the costs include Insurance of $3482.20 that was renewed after just 5 months at a further cost of $3520.46. $3482.20 had already been included in the costs of sale of the Abbott Street property. In total I paid $10,484.86 in insurance premiums through CBA's own insurance company Comminsure. My insurance premium for my family home was approx $520.00 for 12 months and my home was insured for over $800,000. They then charged me a further $726.82 to repair a window that their agents broke and to fit two cupboard doors. The $10,000 insurance evidently didn’t cover the broken window.
I was charged $8266.72 for painting, cleaning, gardening. This includes ripping out the hallway carpet. The house should have been sold intact. I was certainly not asked whether they could paint or remove carpet. I was asked could they remove a structure that was half finished in the back yard in relation to a deck. I said no and the structure remained.
I was charged $1814.25 for the replacement of a hot water cylinder that I did not give my approval for.
I paid $14,787.95 and $628.98 for the removal of my personal property that was trashed and stolen by Atkins Removalist. I have been paying weekly storage fees to Atkins Removalist and am finding it difficult to collect the remainder of my trashed and stolen items.
There are conveyancing fees of $5,780 and a massive Commission of $17,335 on the wrongful sale, as well as smaller fees for valuations, cleaning, gardening, Commercial Agent Fees.
I have constantly asked for and been denied detailed copies of Company Invoices. My loan has constantly been charged fees labelled on the loan statement as for servicing the loan. Statement information has now been removed from my internet banking completely. At one stage I added them up and the extra amounts were over $41,000. Interest on the outstanding amount supposedly owed continues to accumulate at thousands of dollars.
A residual figure of $73,259 is formally due to me. Several caveats remain on Elphin Rd (they were supposed to have prevented the sale of the property but were ignored). The status of these caveats remains unclear, but Simmons Wolfhagen retains that sum with the formal intention of meeting the claims of the caveats.This story is a true account of events written by Suzi Burge.