A quantity surveyor has sued ANZ bank for breach of its promise to place his company on its “panel” of preferred to perform work on the bank’s behalf, in exchange for giving the bank his business when borrowing to buy office premises.

David Kelly claimed that in April 2005, ANZ relationship manager Greg Asher told him “I am sure I can get you on the panel if you have commercial loans with us…. ANZ supports our business customers”.

On the strength of that representation Kelly proceeded with the purchase of Arthur Street North Sydney premises, financed by a $700k ANZ loan.

The transaction went ahead but Kelly was not added to the panel.

He took six years to register a formal complaint but in June 2011 – suffering financial and cash flow issues – finally decided to launch proceedings for the bank’s misleading and deceptive conduct over its unfulfilled promise.

His QS company was placed into voluntary liquidation in September 2011 and the following month, ANZ filed counterclaims to his lawsuit alleging defaults on loans.

Kelly produced an April 2005 PDF copy, of a letter he emailed to ANZ, confirming Asher’s promise and specifying he was only proceeding with the loan through ANZ in consideration of being placed on the QS panel.

Kelly could not produce any record of its transmission, because of a “computer crash” but relied instead on the PDF document file, that he claimed, authenticated its creation on the day the email had allegedly been sent.

ANZ argued throughout the 9 day trial – in which Kelly was self-represented – that the email and the letter were complete fabrications.

It called computing engineer Ajoy Ghosh who produced four forensic reports and gave testimony that the document file had in fact been created years later but – because of manipulation of Kelly’s computer’s internal clock – appeared to have been created and last accessed in April 2005. The hard drive had also been wiped clean to remove evidence of any manipulation.

The court appointed handwriting expert Michelle Novotny to verify the authenticity of Kelly’s allegedly contemporaneous notes where he recorded Asher saying in response to the panel request, “panel OK”.

Novotny couldn’t say whether the entry had been “concocted” by Kelly having added the entry years later but the court considered them to be at the least, “highly suspicious” and not made when said to have been made.

But even had Asher indicated the proposal was acceptable, the court would not have been persuaded that ANZ had made a binding promise. “The simple indication by our relationship manager of OK could not be taken or relied upon as creating a binding obligation on ANZ”.

Given that the bank had no opportunity to investigate Kelly’s professional experience, competence, history and performance, it was unlikely it could have agreed by April 2005, that he be placed onto its panel.

The NSW Supreme Court dismissed Kelly’s claim – holding that no promise as alleged had been made – and ordered he pay the bank’s substantial legal costs.

Kelly v Australia and New Zealand Banking Group Ltd [2014] NSWSC 426
view decision


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