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Appendix (d): The Case History of Anita Brigitta Bernstrom


Appendix (d): The Case History of Anita Brigitta Bernstrom



My recollection is that I first became aware of the Anita Bernstrom/National Australia Bank dispute in April 2008. What I learnt was highly disturbing. It so transpires that just on six months after Chief Justice Paul de Jersey had completed a coup de grace on the Troianis, he travels out of his way and does a similar coup de grace on Anita Bernstrom, a minor NAB customer. What transpired is as follows.

In The Supreme Court of Queensland

Circuit Location: Cairns

Where:
Anita Brigitta Bernstrom is Respondent/Plaintiff

and

The National Australia Bank is Applicant/Defendant

Recited as Claim No 52 of 2001

With the Chief Justice, Paul de Jersey presiding.

Background:

In 1987 Anita Bernstrom (AB) took possession of a property on the outskirts of Cairns in North Queensland to be known as Moncrieff Park. Searches reveal that the property is described as Lot 1 on Registered Plan No 37060 situated in the County of Nares and Parish of Cairns and contained 1.459 hectares. The purchase consideration was stated to be $150,000.00.

In November 1995 AB applied for a Home Loan amounting to $225,000.00 from the National Australia Bank. This was approved the same month and attracted monthly repayments at $2,275.00 for a term of 25 years. Bank security for this loan was a Registered Mortgage over Lot 1 Moncrieff Park property as described above.

In September 1998 the bank approved a Business Combination Loan amounting to $106,000.00 on an interest only basis for ten years. Based on the interest rate prevailing at the time, the monthly interest component amounted to $1,196.00 per month. AB entered into formal acknowledgement that the bank's existing security was held as collateral to this loan.

The purpose of the Business Combination Loan was to develop bank security into a safari park which would include camping and dining facilities. It was to be a unique style development for Cairns where a family holiday would be encouraged and promoted.

Development infrastructure proceeded, so much so that an application for right to operate was presented to the Cairns City Council. After fulfilling several Council requisitions, a license to operate was received. However that operating approval was subject to varied objections by a neighboring property owner and the objections were upheld.

AB did not intend allowing that situation to rest and, many months down the track and after making several improvements to the safari park, AB resubmitted a second application for approval to the Cairns City Council sometime during the second quarter of the 2000 year. Cairns City Council approved the holiday theme park for the second time in January 2001.

Once again the Councils approval was subject to an appeal by the same neighboring property owner who had objected previously. He was successful in stalling the official opening of the safari park once again.

The stalling tactics had a substantial effect on AB's financial resources and, to regularise the situation, the National Australia Bank approved a Business Secured Overdraft amounting to $20,000.00 in May 2000. Existing registered mortgage security held by the bank secured this overdraft. The expiry date of this overdraft was not stated in the Business Secured Overdraft Application signed by AB on 16 May 2000. It was AB's belief at the time that the overdraft facility would not be subject to review until sometime after the bank was notified of Council approval; expiry was not mentioned.

An examination of the Supreme Court of Appeal filed documentation by the Defendant Bank reveals that the bank exhibited an internal AB file document which indicates that the initial expiry date to this $20,000.00 overdraft limit was 31 July 2000 – that is, an expiry date less than three months after contract signage.

AB was notified by the bank during the month of October that the debt had exceeded the approved limit of $20,000.00. As a result AB called at the bank on 1 November 2000, accompanied by her son Shayne Buckley and his wife, and were interviewed by Relieving Manager, E J Matson. AB's financial status was fully discussed and AB mentioned the matter of refinancing the existing financial accommodation with the aim of giving her two sons a formal share of bank security as registered proprietors. The relieving manager responded by saying that that would not be necessary.

AB's son then prepared to immediately give his mother the sum of $15,000.00 to reduce the overdraft debt. The bank manager responded by saying that the sum of $10,000.00 would be sufficient and there was an assurance given by this bank officer that in no way would the bank consider foreclosure or the matter of issuing demand for debt recovery.

Further discussion indicated to the bank that son Shayne Buckley was prepared to give his mother $1,000.00 per month to assist in meeting commitments to the bank. AB also advised the bank that she believed that her second son, Harold Buckley, would also be prepared to assist his mother financially.

Pursuant to the verbal arrangements made at the interview discussion with the bank's relieving manager on 1 November 2000, AB's son Shayne deposited a further six payments to the account at $1000.00 each during the period from 3 November 2000 to 30 March 2001, while son Harold Buckley and his wife, Annette made two deposits to the account aggregating $2,800.00 divided into one payment of $1,400.00 on the 2 November 2000 plus a further $1,400.00 on the 1 December 2000.

Sometime during the first week of March 2001, AB received a letter from the bank signed by Graham Doeblin, Business Manager, attracting the subject heading, "National Cheque Account: Account Number 48-621-4382: Current Account Balance $18,594.82DR: Approved Limit $20,000.00.

The Business Manager then informed AB that the account had been irregular for 27 days which was followed by the instruction, in BOLD, "Please immediately pay in $18,594.82 to restore your account to credit."

It was further pointed out to AB that the Overdraft Account is an "on demand" facility, and then continued, "This means that the law empowers the bank with the ability to call for the immediate full clearance of the debt at any time."

Further intimidatory remarks were made that if the overdraft debt is determined as irregular for sixty days plus, then the ability to obtain future credit with the bank and any other providers would most likely be severely jeopardised.

Some weeks later, AB received a Default Notice and Demand with the scheduled debt described as the Business Overdraft Purpose Facility. This message of advice was issued by the NAB's Asset Structuring Unit, 255 Adelaide Street, Brisbane, and claimed that AB's Commercial Mortgage Overdraft was in the default with the sum owing at $17,827.75. This Notice was dated 22 March 2001. On the same day, the bank also issued a Notice of Formal Demand with respect to AB's Investment Combination Loan for the sum due $113,188.94.

Under the date of 4 April 2001, the bank issued a Notice of Exercise of Power of Sale which incorporated a description of bank security in Schedule 1 and in Schedule 2 listed the individual debts outstanding at the time for AB's Commercial Mortgage Overdraft, Business Combination Loan and Investment Home Loan wherein aggregate debt was stated to be $285,235.80.

Creating a 'default situation' pursuant to a previously approved overdraft facility is one of the classic “sting” operations included in the bag of dirty tricks employed by the National Australia Bank.

(This situation also figured prominently in the litigation of National Australia Bank v Sante Troiani and Rita C Troiani as previously mentioned. Chief Justice, Paul de Jersey feels the need to record in his judgement, "The overdraft was available ... 'at all times at the discretion of the bank'". This bank employs an established pattern in overdraft manipulation to engineer default with their borrowers in other Australian states.)

The bank knew full well that at the time of overdraft approval, if it eventuated that any overdraft debt of consequence was created, then AB could not repay that debt on demand without entering into refinancing arrangements. The aspect of overdraft availability "at all times at the discretion of the bank" was never at any stage mentioned to AB at the time of the bank's approval of the overdraft facility in May 2000 or subsequent.

In AB's Supreme Court of Appeal litigation (C.A.No 9031 of 2001 & 52/2001 Cairns) the NAB felt the need to include in the Appeal Binder of Documents, four such documents described as "RLI16", Detailed Facility Sheet, and "RLI17", Risk Asset Review Form. Date was said to be 12 May 2000 for this latter named document, whereas Exhibit marked "RLI16”, was dated 16 November 2000.

One of these documents attracted a titled sub-heading, Listed File Report – Date of Review 11 October 2000. Why the account was subject to review is not known. The account was in order with the recorded bank debt at $19,986.97 on the 11 October 2000. The balance remained static at this figure to 30 October 2000.

By referring to Exhibit marked "RLI16" described as a Business Credit Submission dated 12 May 2000, it lists the No 1 facility as Commercial Mtge Overdraft New Limit at $20,000 with Expiry Review Date 31-Jul-00. In other words, following the approval on 16 May 2000, this overdraft facility had a term of availability of only seventy six days before it was subject to review – a very unusual situation. It must be pointed out that the bank never mentioned the matter of expiry date of the overdraft limit and what the review arrangements were, if any.

The abnormally short period of seventy six days means that as far as the bank is concerned, if there is an outstanding debt (as would be expected) as at 1 August 2000, the bank could have demanded repayment within twenty four hours. It could then be construed that a default existed and the bank could then have commenced foreclosure proceedings.

At the time of the approval of the Commercial Overdraft, the bank knew full well that AB had an Application before the Cairns City Council for a resort of a unique nature. In the circumstances, it would have been logical to approve the Commercial Mortgage Overdraft for an initial term of six months, expiring 30 November 2000. It would then have been extended in view of the fact that AB had not yet received Council approval for the development.

This internal bank document RLI16 indicates that the Commercial Overdraft was extended for a three month period expiring 31 October 2000 and then a further three months to 31 January 2001. These extensions were unbeknown to the borrower.

On the 2 March 2001, the bank sent their infamous letter to AB demanding that AB repay the outstanding debt at $18,594.82 immediately It will be noted that the outstanding debt is under the original approved limit. By referring to Exhibit marked “RLI17", which is described as a Listed File Action Plan Completion Form raised under the date of 16 November 2000 and signed by E J Matson, Relieving Manager, Matson brings the status of AB's liabilities to the notice of his immediate superior, Senior Business Banking Manager, Patrick J Freney.

This form initially records that total outstanding debt is $284,036.00 against approved limits aggregating to $293,302.00. This juxtaposition indicates that the accounts are in order.

Proceeding, one finds that the Relieving Manager lists five action steps to be completed to restore and confirm asset quality. The first three steps are of interest and are as follows:

1. Interviewed Mrs Bernstrom in the presence of her Daughter-in-law and son. The children are making repayments to instalment and home loans with ILO balance O/D $157,794.00, Limit $160,194.00

2. Son deposited $10,000.00 also to cheque account reducing balance to $12,864.00, Limit $20,000.00 Expired. Children advise that they are prepared to continue to assist in the foreseeable future.

3. Mrs Bernstrom advised that she expects formal Council approval authorities for the resort before 31 December 2000 & will market for either sale or equity partner.

It can be seen that the Relieving Manager makes no mention of the vital issues discussed with the bank's customer, Anita Bernstrom, and her son and daughter-in-law on the 1 November 2000. These vital issues of course were the initial offer by AB's son that he was prepared to deposit $15,000.00 to his mother's account and the fact that AB was prepared to formally transfer an interest in the bank's security to her two sons. These two offers were of a beneficial interest to the NAB and they refused on both counts, so why would they do this? In my view the bank's actions illustrates that they had an ulterior motive which was presently in train. The fact was that the $15,000.00 reduction was beneficial to everyone.

I consider that my ulterior motive inference is supported by the fact that at no time did any bank employee inform AB of the vital issues of an overdraft facility – what is the standard term and what eventuates at expiry. This did not happen.

Deceit of process by the bank is exacerbated by the fact that the logical document for the bank to discover was Relieving Bank Manager Matson's Customer Interview Record (Diary Note) for his interview on the 1 November 2000. The main game for the bank when confronted with litigation is to confuse the opposition and constantly so.

The second internal document marked "RLI17" included in the Appeal Binder is titled a Listed File Report and is raised by the Bank's Risk Asset Review Unit. Under the sub-heading, Risks Identified, the reviewing officer states, "Doubtful ability to meet all financial obligations". This statement lacks credibility when it is realised that a few weeks previously Relieving Manager Matson would accept $10,000.00 and not $15,000.00 when offered. Others matters for notice and attention follow which principally state that the "Commercial Overdraft Limit extended to 31 January 01 to regularise" and "obtain updated position with the Council. No arrears or excesses allowed until review at 31 January 01.”

This document was then subject to sign-off by the controller in the bank's Asset Structuring Unit. For the file to come under the auspices of the Asset Structuring Unit seems strange to me. My consultancy experience has always revealed that when a customer's file comes under the auspices of the Asset Structuring Unit, Formal Demand will issue in due course followed by foreclosure, appointment of receiver/managers, etc.

The bank's customer lending rating of AB's lending limits in aggregate is recorded as ‘A’ as per Business Credit Submission dated 12 May 2000. This is the document listed in the Appeal Binder and marked, "RII16". This means that the aggregate of the lending facilities comes within the delegated lending authority of the manager as Category 5. This level represents the lowest approval level in the bank.

It transpires through the evidence of the Appeal Binder Exhibit marked "RLI17" that the Asset Structuring Unit of the bank becomes aware of AB's account status on 8 December 2000. Why this was necessary at the time is not known; it seems unusual because the aggregate liabilities as per listing still came within the delegated lending authority of the branch manager.

Due to the very short term approval of the Commercial Mortgage Overdraft of $20,000.00 on 16 May 2000, and allied with the fact that the bank has failed to produce a copy of their Customer Interview Record for the interview discussion which took place on the 1 November 2000, I strongly lean to the view that the bank had made a decision prior to 31 December 2000 that when certain circumstances arose concerning indebtedness, the authority to issue Formal Demand would then take place.

I would like to remind the reader that from 1 February 2001 the twice renewed overdraft limit at $20,000.00 had expired. Moreover the bank would have been informed by AB that the Cairns City Council had approved the development of twenty five 'safari tents' (cabins). The inclusion of dining facilities and an ancillary function centre was refused.

The interesting point is that by referring to the bank's Form 4, Notice of Exercise of Power of Sale, raised under the date of 4th day of April 2001, it can be seen that the total indebtedness outstanding (including interest accrued to date) amounts to $285,235.80 and this amount is less than the approved limits of the day which stand at $292,707.17.

It is my view that if an intending borrower presented a proposition to the National Australia Bank, or any other bank for that matter, on the 4 April 2001, and offered the same security as presently held by AB, allied with acceptable serviceability arrangements, then the bank's lending officer could have approved this proposition under his own authorised delegated lending authority.

The security classification in NAB lending guidelines has been determined as Category 5‘A’. This means that, at the time the NAB issued their Form 4, Notice of Exercise of Power of Sale dated 4 April 2001, the branch manager could have approved the loan on his own volition. There was no existing impediment which would have precluded the manager from doing this; so one has to wonder, why did the NAB commence foreclosure action in the first place?

One wonders in the circumstances why a bank would act so hastily with the issue of Formal Demand and Notification of Exercise of Power of Sale as mortgagee, knowing that their customer of over five years standing would lose their only asset of consequence that she had strived to develop and be left impecunious.

My inference is perfectly clear: AB is the victim of a National Australia Bank “sting” operation – in essence the same as the victims of the previous case history, Sante Troiani and Rita C Troiani.

I am unable to determine when the bank decided that AB was going to be the victim of one of their sting operations; however I hold the view that it was sometime prior to the 16 May 2000, the date when the bank approved the $20,000.00 Business Overdraft on behalf of AB.

Following the receipt of the bank's Form 4, Notice of Exercise of Power of Sale, dated 4 April 2001, Anita Bernstrom decided to commence legal proceedings in endeavour to stop the bank from selling her property which was mortgaged to the bank.

AB filed her Claim in the Supreme Court of Queensland at Cairns on 1 May 2001. AB's Claim stated that arrangements were made with the bank concerning existing loan arrangements and, on the reliance of those arrangements, certain monies were paid to the bank.

The filed Claim proceeded to state that the bank gave an undertaking that they would not proceed to act under their securities. These facts created a status of estoppel and therefore the bank was not entitled to proceed to exercise power of sale.

In the circumstances AB was entitled to a stay in the bank's attempted exercise of the power of sale and proceeded to claim damages and exemplary damages for the unilateral repudiation of the said agreed upon arrangements.

The Claim gave the bank twenty eight days to file a Notice of Motion to defend in the Supreme Court Registry. The bank's Defense and Counter-claim were filed within the prescribed period and their rebuttal was clear. It was claimed that there was no agreement and at no time did the bank waive its right to exercise powers of sale in respect of their securities.

The defense document then proceeded to state that the bank-approved overdraft at $20,000.00 was a Commercial Mortgage Overdraft expiring 31 July 2000 and this facility was to take up arrears on the existing two loans due to AB's inability to earn income from operating an eco-tourism park.

The defense further outlined that the overdraft had been extended on three occasions, viz 30 September, 30 October and 31 January 2001. At this latter date AB failed to repay an amount outstanding at the time, stated as debit $17,805.64.

In the following eight clauses, the bank denied all AB's claims and then proceeded to outline their counter-claim which simply detailed matters of their existing approved loans to AB – a Home Loan and a Business Combination Loan. The document detailed particulars of each of these two loans and concluded with an amalgamated debt stated to be $289,021.73 attracting a daily interest accrual rate of $70.52 per day.

On the 20 August 2001 or thereabouts, the bank filed a four page affidavit in the court where the deponent was Rex Leonard Isherwood, the Manager of the bank's Asset Structuring Unit in Queensland. This document dealt with four specific matters under sub-headings as follows:

The Home Loan

In this section, Isherwood exhibited the Home Loan Contract together with the said agreed upon changes and a true copy of the bank's duplicate mortgage over Lot 1 on Registered Plan No 73060 which secured the home loan. He then proceeded to say that the original amount advanced was $225,000.00 on or about 25 November 1995 and that the amount outstanding as at 22 March 2001 was $112,726.24.

Business Combination Loan

This section follows a similar pattern as outlined under the previous heading and in this case the original amount advanced was $160,000.00 while on the 22 March 2001 the amount outstanding was stated to be $153,206.79.

Overdraft

Isherwood initially exhibits a copy of the Business Secured Overdraft Application which bears AB's signature under the date of 16 May 2000. He then proceeds to say that AB drew down the sum of $20,000.00 by way of the overdraft and that on the 20 March 2001, the sum of $17,736.96 was outstanding.

Default

The vital statement is contained in the third clause under this heading which states, "The overdraft was initially expressed to expire 31 July 2000”. The document then proceeded to reiterate the expiry dates of the overdraft facility as stated per their filed defense.

Isherwood then proceeded to exhibit two internal bank documents from their file in the name of AB. These were described as a Detailed Facility Allocation Sheet marked "RLI16”, and a Risk Asset Review Form marked “RLI17" which records that the overdraft facility has been extended to 31 January 2001. The deponent then stated that AB had failed to repay the overdraft by 31 January, 2001.

The affidavit concluded by the deponent outlining to the court the default process, current outstanding indebtedness applying to each of the facilities, together with the amounts of outstanding interest. The individual amounts aggregated to the sum of $294,562.76 as at 20 August 2001.

On the 17 September 2001 or thereabouts, AB filed in the court Answers to the Bank's Request for Further and Better Particulars. This response covers five pages and outlines AB's version of events which took place at the bank with the Relieving Manager, Eric Matson, on 1 November 2000. Pursuant to that meeting, the document then detailed specifically the 13 deposits made to her account by her two sons which aggregated $24,461.00.

Exemplary damages were claimed because "the bank behaved in a humiliating manner and in wanton disregard for the respondent Anita Bernstrom's welfare. In those circumstances the absence of actual malice did not disentitle the respondent to exemplary damages … may be found in contumelious behaviour which falls short of being malicious or is not aptly described by the use of that word.”

Damages to the extent of $30,000 were claimed.

The two prominent and critical issues in this litigation are the matters concerning the circumstances surrounding the bank's approval of the $20,000.00 overdraft in May 2000 and what took place at the interview discussion at the bank on the 1 November 2000 when those present were Anita Bernstrom, her son Shane Buckley, her daughter-in-law Annette Buckley and the bank's Relieving Manager, Eric Matson.

I hold a copy of the Rex L Isherwood exhibit marked "RLI16" which confirms that the overdraft attracted an initial expiry date of 31 July 2000, a term of no more than seventy six days. The aforementioned date was then extended to 30 September 2000, then to 31 October 2000 and finally to 31 January 2001. These extensions occurred without the knowledge of the customer. The formal title of this document is a Business Credit Submission with the sub-heading Detailed Facility Allocation Sheet.

As I have previously stated, the bank never issued any formal approval letter to AB following the bank's approval of the $20,000.00 overdraft. AB was not told that there was any expiry date applicable and left the bank at the time assuming that the overdraft was available on an indefinite basis at the time.

My experience clearly indicates that it was normal practice for NAB to always issue a formal letter to the borrower which sets conditions of the overdraft approval. Further I have never known of a situation where any overdraft has been approved for a period of less than three months. Well in excess of ninety per cent of overdrafts approved are for the minimum term of twelve months.

The bank was kept fully informed by their customer at all times concerning the status of her Application submitted to the Cairns City Council for the development of bank security. The bank would have been well aware that it can take some time before a decision is made regarding an Application for development, especially in this particular case.

Since the bank became aware that conditional approval by the Cairns City Council was issued on 19 January 2000, the question which would readily come to anyone's mind is, why is the bank demanding repayment of the overdraft in such haste, in February 2001.

As we know, this demand precipitated the eventual loss of Anita Bernstrom's property which had been her major property asset for over thirteen years and she was going to lose it 'overnight' to some bank technicality.

The obvious implication to anybody with the known facts as outlined above is that the bank's action is clearly unconscionable. However I maintain that the situation goes much deeper than this and it is very clear in my view-that the "default" situation under the overdraft is representative of a bank "sting" operation.

I now draw the reader's attention to the Rex L Isherwood Exhibit marked "RLI17" which was described as a "Risk Asset Review Form". A copy of this document is in my possession and it is dated 16/11/2000. This document lists five steps to be taken to 'restore' asset quality and is signed by EJ Matson, Relieving Manager.

In step one, Matson confirms that an interview took place which indicated that he had interviewed Mrs Bernstrom in the presence of her daughter-in-law and her son. There is no mention of when this interview took place.

Matson then proceeds in step two to inform his Senior Business Banking Manager, Patrick J Freney, that "son deposited $10,000.00 also to cheque a/c reducing balance to O/D $12,864.00 Limit $20,000.00 expired. Children advised that they are prepared to continue to assist for the foreseeable future."

On the surface, Matson's advices to his superior would seem to be correct. However Matson omits to inform his superior that the son offered to deposit the sum of $15,000.00 and that he had informed Anita Bernstrom and her son that the reduced amount of $10,000.00 would be sufficient in the circumstances.

Bearing in mind that Anita Bernstrom's son made a further six deposits to his mother's account, all for the sum of $1000.00 from 3 November 2000 to 30 March 2001, it can be positively assumed that these monies would never have been deposited unless it was known that the bank was not going to foreclose on their customer of five years standing. As we now know, Anita Bernstrom's children, in an endeavour to help their mother, have helped the bank and they have done their hard earned money ‘cold’.

This is bank treachery at its worst; the bank's disclosure is designed in deceit. The fact is that the real document Isherwood should have exhibited to his affidavit was a true copy of a Customer Interview Record of the interview discussion which Matson conducted on the 1 November 2000.

I suspect that a Customer Interview Record of that interview was not raised. The other salient issue raised with Matson by Anita Bernstrom was the issue of formally transferring a third interest in the bank's security to each of her two sons so as to alleviate some financial pressure on her own account.

In my discussions with Anita Bernstrom, she informed me that Matson responded to her offer of transfer of portion of her interest as owner by saying that that action would not be necessary. Any banker of managerial status who became cognisant of the facts, as outlined above, would have no hesitation in coming to the conclusion that the bank had been engaged in a double dealing exercise where the financial imbalance which exists between the parties wins the day for the most powerful, the National Australia Bank.

The events which took place at the Supreme Court of Queensland in Cairns on the 20 September 2001 when the Chief Justice, Paul de Jersey, was listed to hear Anita Bernstrom's Application and the National Australia Bank's Counter Claim are certainly subject to controversy.

I have had telephone discussions with Anita Bernstrom, her son, Shayne Buckley, and her counsel, Jim Bradshaw, who were principally involved in the events. Their recollections of event chronology are not absolutely precise. However, I think that the following record is a true record of events bearing in mind that I have also had access to all of Anita Bernstrom's appeal documentation.

The Application initially came before the Chief Justice in a chambers hearing before proceeding to the hearing proper. At the outset AB's counsel brought to the attention of His Honour that he wished to examine Shayne Buckley, AB's son, from the witness box; an approximate time was then set down by the Chief Justice.

During the break and before the hearing proper commenced, Shayne Buckley deposed to an affidavit of his recollection of events at the time of interview at the bank when he accompanied his mother on the 1 November 2000. When the hearing reconvened Shayne Buckley was in the court precinct believing that he would be required for cross examination. The affidavit sworn by Shayne Buckley was then served on the bank and/or their counsel.

AB's Application commenced before the Chief Justice and, after preliminary introductions of counsel for AB, Mr Bradshaw and counsel for the National Australia Bank, Mr Lilley, His Honour was informed by Mr Lilley that he wished to cross examine Shayne Buckley. It was then brought to the Chief Justice's notice that Shayne Buckley was outside the court room waiting to be called. The Chief Justice was also apparently informed that Shayne Buckley was anxious to return to his place of employment, having left rather hurriedly earlier in the day.

The Chief Justice then adjourned the court so that the bank's counsel, Mr Lilley, could interview Shayne Buckley outside the courtroom. The interview took place outside the courtroom with those present being, Shayne Buckley, the bank's counsel, Mr Lilley, the instructing solicitor for the NAB, Leeanne Bou-Samra, and Jim Bradshaw, counsel representing Anita Bernstrom. Bradshaw and Bou-Samra were silent observers to the interview discussion.

Apparently the thrust of the discussion between Lilley and Shayne Buckley related to the bank's document exhibited to the affidavit of R I Isherwood and marked "RLI17" which is titled, Listed File Action Plan Completion Report, dated 16 November 2000. Shayne Buckley’s attention was directed to Step No 2 of the document which stated:

Son deposited $10,000 – also to cheque a/c reducing balance to O/D $12,864 – Limit $20,000 – Expired. Children advised they are prepared to continue to assist for foreseeable future. Shayne Buckley substantially agreed that the above writing was correct as he similarly did with other questions put to him by Mr Lilley concerning other references to the document. Mr Bradshaw made no comment at that time and shortly thereafter the court reconvened. Shayne Buckley then left the court precinct to return to work.

Following the recommencement of the Application and Counter Claim, Mr Lilley provided the Chief Justice with his outline of argument while Mr Bradshaw handed up a copy of his client's Statement of Claim. The transcript of proceedings cover five pages with all taken up with, discourse between the bank's counsel, Mr Lilley, with Anita Bernstrom's counsel, Jim Bradshaw, limited to the final three paragraphs on the last page.

The very significant matter concerning this transcript of proceedings is the fact that all preliminary address by the bank's counsel with the responding comments of the Chief Justice, Paul de Jersey, have not been recorded on the transcript. Before the transcript of proceedings recommences after the adjournment appears the remark: "PORTION OF RECORDING MISSING".

Mr Lilley proceeds to highlight to the Chief Justice the pertinent points relating to the bank's Exhibit "RLI17", the document exhibited to the R I Isherwood affidavit. Lilley's opening remark represents a quote from Exhibit "RLI17" being, "Interviewed Mrs Bernstrom in the presence of daughter-in-law and son". Then Lilley proceeded with the amplifying fact that Mr Buckley, " … accords basically with the recollection of the conversation”. Lilley here is referring to the words recorded in Step 2 of the document as described above with the following discourse being revealed:

HIS HONOUR: Oh, this is as a result of your having spoken with him?

MR LILLEY: Yes, your Honour.

HIS HONOUR: Mmm.

MR LILLEY: So, your Honour's in a position where you have this affidavit …

HIS HONOUR: But this is as a result of your having spoken with him?

MR LILLEY: Yes, your Honour and so your Honour's in the position where you have this affidavit …

HIS HONOUR: But this is a conversation with whom?

MR LILLEY: A conversation with Mr Matson. That document is …

HIS HONOUR: Not Mr Pope?

MR LILLEY: No, your Honour. Down the bottom, you will see …

HIS HONOUR: Oh yes.

MR LILLEY: … Mr Matson has signed it.

HIS HONOUR: And what's the date of this conversation?

MR LILLEY: The date your Honour, appears to be …

HIS HONOUR: 16/11.

MR LILLEY : … around – yes. No, it's around about 1 November because it refers to the payment of $10,000 which was made on 1 November and the note is dated probably 16 November.

The discourse then reveals that the children are prepared to help their mother while Anita Bernstrom pursues the approvals with the Cairns City Council.

Mr Lilley then proceeded to highlight the fact that the bank had extended the overdraft for three months from 30 October 2000 when it was due for repayment for three months to 31 January 2001. Mr Lilley also claimed and emphasised that the overdraft was "nearly $3,000.00 overdrawn on 30 October 2000. Its outstanding balance was $22,000.00 odd."

Mr Lilley then mentioned that Anita Bernstrom had withdrawn $8,000.00 of the $10,000.00 deposited and that the outstanding debt was about $18,000.00 by the time the 31 January 2001 had arrived. It was then emphasised that just because the bank accepted the $10,000.00 there was never an agreement that the bank was denied its rights pursuant to its securities.

The bank's counsel concluded by indicating to his Honour that when it accepted the $10,000.00 in reduction of the overdraft debt, it did not preclude the bank from exercising its rights under their securities even if other mortgage payments were kept up to date. It was not a question of default; it was simply whether the bank's former customer is able to deduce out of the two exhibited documents, "RLI16" and "RLI17" that there was an agreement or promise.

Anita Bernstrom's counsel, Jim Bradshaw, then addressed the Chief Justice that the dispute was one where a full ventilation of the facts needed to be addressed at a trial. Counsel alleged that an agreement certainly existed and the facts as they exist create an estoppel.

There is no doubt that the bank's counsel is solely relying on the credibility of the bank's exhibited document "RLI17" which is described as a Listed File Action Plan Completion Report raised under the date of 16 November 2000.

The bank's aim here is one of clear deceit. The fact is that the internal document represents a transmission of information from a Relieving Manager to his immediate superior, his senior Business Manager, of what transpired on the 1 November 2000 by way of a very limited reference.

The primary document for the bank to discover here was Relieving Manager Matson's Customer Interview Record (Diary Note). In telephone discussions the writer had with Anita Bernstrom that the interview discussion with Matson on 1 November 2000 lasted approximately forty five minutes. This duration of time has also been confirmed to me by AB's son, Shayne Buckley, who was also present when this interview discussion took place. One will realise that many issues relating to Anita Bernstrom's financial status with the bank, as well as the status of her development application lodged with the Cairns City Council, were discussed.

It follows of course that the Customer Interview Record or Diary Note, if it was raised, would have revealed what the agreed upon arrangements were.

I should point out that the Customer Interview Record has been an approved stationery item in the NAB since the mid 1970's. Such a document was exhibited in the Federal Court of Australia by Edward Plantagenet Somerset and Elsie Joy Somerset who were the victims of a National Australia Bank "sting" operation in 1984 and bore the print number, ‘275-290 (8/83)’.

What the discovery of bank exhibited document marked “RLI17" shows, in conjunction with the bank withholding the Customer Interview Record or Diary Note record of 1 November 2000, is that the bank has been engaged in a very deceitful process indeed. Of course, as we now know, that deceitful process has been very successful.

Further deceitful process is revealed when it is pointed out that exhibit "RLI17" states that "Son also deposited $10,000.00 to cheque a/c". While this statement is correct in itself, the fact is that one must look at the overall picture. That reveals, by reference to the affidavit of Shayne Buckley, that Buckley offered Matson the sum of $15,000.00 to alleviate his mother's potential financial problems. Matson responded by declining his offer and by telling him not to leave himself short and that $10,000.00 would suffice.

For Matson to respond in this way, he must have been quite satisfied with the residual financial position of his customer. The major issue here is that with the facts available before the court, there were most certainly other matters discussed at the interview discussion which took place on 1 November 2000 and Anita Bernstrom had a right to have these matters ventilated at a trial hearing.

I should point out that the bank's own discovered document titled Business Credit Submission exhibited to the Isherwood affidavit marked "RLI16", dated 12 May 2000, and attracting the sub-heading Securities Summary, records that the Market Value of the bank's securities aggregate to $477,000.00. This figure reveals that the surplus Market Value of the bank’s security is above the judgement debt which extends to $296,901.07.

I consider that the Chief Justice's actions in permitting the banks counsel to cross examine a plaintiff's witness outside the jurisdiction of the court room on the contents of an affidavit raised by the witness himself is totally abhorrent; as would be to any fair minded lay observer who became cognisant of the facts. I suggest that this is not the first time that the Chief Justice has given his discretion whereby one party gains a clear advantage over another.

It must be pointed out again that the Chief Justice has extracted certain matters of address from the bank's counsel which are alleged to represent dialogue that took place between the bank's counsel and the deponent to the affidavit and utilised those remarks in his judgement. The fact is that some of those remarks are not recorded in the transcript of proceedings.

There is no doubt in my mind that the Chief justice has used his weight of office to completely ambush Anita Bernstrom's counsel, Mr Bradshaw. It should never have happened. It is my further view that Anita Bernstrom has been denied natural justice and this status of the situation is completely exacerbated when it is brought to the reader’s attention that it is not revealed in the transcript of proceedings that the Chief Justice, Paul de Jersey, holds a personal banking relationship with the National Australia Bank, the defendant in this action.

What also needs to be highlighted is the misinformation presented to the Chief Justice from the bar table by the bank's counsel, Mr Lilley. Lilley informs the Chief Justice that the $20,000.00 overdraft debt was due to be repaid on 30 October 2000 and that on that day, "it was in fact overdrawn $2,000, nearly $3,000 overdrawn on the 30 October 2000. Its outstanding balance was $22,000 odd.” This latter statement is patently false.

I hold a copy of the relevant overdraft account statement page No 2 issued on behalf of Anita Bernstrom and it reveals that the account balance outstanding as at 30 October 2000 extends to Dr $19,986.97. This balance of course indicates that the account is regular and in order.

There can be no doubt that the most critical issue of these proceedings as far as Anita Bernstrom and her counsel, Mr Bradshaw, was concerned was the interrogation of Shayne Buckley by the bank's counsel, Mr Lilley, outside the courtroom. This event allowed the bank's counsel to put his version of events as to the dialogue which took place to the Chief Justice on hearing recommencement. Anita Bernstrom was devastated when the implication of the events was outlined to her. Mr Bradshaw's comment on the situation to me when I discussed it with him was that he was "completely ambushed by de Jersey". I completely endorse Bradshaw's opinion here in more ways than one.

Having spoken to Anita Bernstrom, her son Shayne Buckley and her counsel Mr Bradshaw on more than one occasion, they have all advised me that they were all under the firm understanding that Shayne Buckley would have been called as a witness for both examination and cross examination. It should be further pointed out that in a court hearing of the triable issues, Bradshaw had several other witnesses he wished to put into the witness box for both examination and cross examination.

Both Anita Bernstrom and her counsel have informed me that shortly after the hearing proper commenced, there was considerable dialogue by way of address from the bar table concerning the cross examination of Shayne Buckley by the bank's counsel, Mr Lilley.

This dialogue was of critical import and unfortunately it is not recorded in the transcript of proceedings. The transcript of proceedings reveals that after counsel opening, the following words appear in the transcript, "PORTION OF RECORDING MISSING".

Normally, anyone reading this transcript would think that this was just some unfortunate mistake within the transcribing system. However I am able to inform the reader that there is a regular problem of missing or doctored transcripts in litigation involving banks where Justice de Jersey has been a sole member of the bench or jointly with others.

The Chief Justice commences his judgement by saying, "This is an application for summary judgement" and makes no mention of whether there is a triable issue in so far as the Applicant, Anita Bernstrom's pleadings are concerned.

The Chief justice then proceeds to say that, "There is no doubt that the relevant default occurred and prima facie, the bank would, therefore, be entitled to recover possession, the requisite notice having been given."

The defense position is then outlined and surrounds what is said to have transpired at a meeting at the bank on 1 November 2000 when it was stated that Anita Bernstrom's sons had agreed to make repayments to assist their mother. It was then a question of whether it can be inferred from the evidence that there was some undertaking on behalf of the bank not to enforce its rights.

The Chief Justice then alludes to the Shayne Buckley affidavit which was received earlier in the day. He then pointed out that the bank's counsel, Mr Lilley, spoke with Mr Buckley without objection. The Chief Justice then proceeds to say that he was informed from the bar table that Shayne Buckley agreed with the bulk of the diary note by the relevant bank manager Mr Matson on the 16 November 2000.

Let me say that the communication raised by relieving bank manager Mr Matson on the 16 November 2000 is not a diary note as stated by the Chief Justice. Far from it, it simply represents an internal communication within the bank. The fact is that the bank did not see fit to discover Matson's diary note of the 1 November 2000, and I consider this to be a critical flaw in the bank's application for summary judgement. It is relatively easy to see that the bank has engaged in a process of deceit here.

The interview discussion on 1 November 2000 lasted approximately forty five minutes and, if this discussion was raised in the form of a diary note, it would represent a paper spread in a very much larger form if it was compared with what is stated on Exhibit "RLI17".

I strongly believe that the import of diary notes is well implanted in the Chief Justice's mind because the subject matter relating thereto is recorded in many banking text reference books. A good example is Weerasooria's Banking Law and the Financial System in Australia, 6th Edition, Chapter 36, ‘Legal Aspects of Bank Lending and Securities’. Surely the Chief Justice should have harboured some suspicion of what he was required to adjudicate upon concerning the ‘diary note’ which he acknowledges is Exhibit "RLI17" to the affidavit of RI Isherwood. By reference to Isherwood's affidavit, it will be seen that he describes his Exhibit "RLI17" as a 'Risk Asset Review Form', Clause 24 refers.

In my view the ‘diary note’ reference in the judgement of the Chief Justice would have to have questionable connotations.

The Chief Justice proceeds to record on the final page of his judgement as follows: "Mr Buckley, I was informed, agreed that all except the last four lines of the diary note constituted an accurate account of the conversation they had with the bank manager. If that is so, it is difficult to see how the defense could possibly get to first base."

It is my view that the Chief Justice's judgement lines as quoted above represents a fabricated version of events which is to ensure and amplify his reasoning in giving a favourable decision for the bank. The Chief Justice describes the Isherwood Exhibit "RLI17" – Risk Asset Review Form – once again as a ‘Diary Note' which it is most definitely not. I repeat, this is a very questionable determination on the part of the Chief Justice.

The Chief Justice proceeds to support the address of the bank's counsel that the facts in no part indicate that there has been any agreement or promise on the part of the bank. The Chief Justice's conclusion here extends from his previous statement that the Shayne Buckley affidavit, filed in court with the leave of the Chief Justice, did not include any agreed arrangement on the part of the bank not to commence action under its securities any time in the future.

Anyone who became familiar with the proceedings on the day of the trial hearing would readily come to the conclusion that the Shayne Buckley affidavit represented a ‘rush’ job and it is therefore unreasonable to accept in the circumstances. There is also the question of what were the circumstances which caused Shayne Buckley to raise his affidavit in the first place, and if there was any input into the document by Anita Bernstrom's counsel, Mr Bradshaw.

Any fair minded lay observer acquainted with the facts of this case history would readily conclude that Anita Bernstrom is entitled to her day in court so that all issues can be ventilated with all those involved being subject to court examination and cross examination.

The fact is that the bank's leading witness in this case, Relieving Bank Manager, EJ Matson, was clearly protected because he did not supply an affidavit and was therefore protected from cross examination. The Chief Justice clearly erred in that he referred to Exhibit "RLI17" as a ‘Diary Note’ when it clearly was not.

I would suggest that Chief Justice Paul de Jersey's summary judgement handed down on 30 September 2001 in favour of the National Australia Bank on its Counter Claim Application is one which is devoid of procedural fairness. This is especially so when it is borne in mind that the Chief Justice has previously acknowledged in other Supreme Court of Queensland litigation where he has presided that the National Australia Bank is his personal bankers.

When I brought this matter of the Chief Justice's banking association to Anita Bernstrom's counsel, Mr Jim Bradshaw, he was filled with abhorrence. Bradshaw realised immediately that Chief Justice Paul de Jersey should have disclosed this fact formally to the parties involved in the proceedings. This action would have meant that the release of this information together with counsel acknowledged comment would have appeared in the transcript of proceedings.

The Chief Justice gave judgement for the bank on their Counter Claim Application for the sum of $296,901.07 and the recovery of the property described as Lot 1 on Registered Plan No 73060.

During my discussions with Anita Bernstrom concerning certain aspects of her case history, I asked her did she attend the National Australia Bank's mortgagee auction of her property situated at Lower Freshwater Road.

AB's response was in the negative, saying that she was absolutely thoroughly disgusted with the NAB's treachery of process and she could not guarantee to herself that she would be unable to conceal her feelings in the situation. AB proceeded to say that this was just as well because she had been informed by people who did attend the auction that the successful bidder was apparently not the highest bidder. I told AB that this certainly looked very dubious and knowing the NAB's past history in these type of situations, I told her that it could well be that the NAB had organised sale to a ‘friendly’ buyer. I then told AB that I would undertake research on the circumstances surrounding the sale of her property.

I then approached a practicising Real Estate Principal who issued me with property data search printouts for the property description as issued by Real Estate Institute of Queensland (REIQ) for Lower Freshwater Road property which is described as Lot 1 on Registered Plan No 737060.

The REIQ search printouts reveal that the property was sold to Scott Cameron Browning for the sum of $213,000.00 on the 9 May 2003. The next transaction on the printout indicates that Scott Cameron Browning sold Lot 1 Lower Freshwater Road on the 8 November 2004 for the sum of $325,000.00. It will be seen that purchaser Browning has made a very tidy profit of $112,000.00 or 52.58% of the purchase price within eighteen months.

As soon as I became aware of the mortgagee sale to Browning for the sum of $213,000.00, 1 immediately instituted the appropriate confirmatory searches at the offices of the Department of Natural Resources and Water in mid-2008 and they revealed that the Transfer between the parties was executed on the 10 June 2003 wherein the Transferor was the "National Bank Australia Limited ACN 004 044 937 as mortgagee exercising power of sale under Mortgage No 7010887862" with the transferee named as "Scott Cameron Browning" and the consideration confirmed at "two hundred and thirteen thousand dollars ($213,000.00).:

I have previously pointed out that the NAB's self discovered document described as a 'Securities Summary dated 12 May 2000 revealed that the market value established by the bank of AB's property situated Lower Freshwater Road, Kamerunga, Cairns extended to $477,500.00. It can be seen that the actual consideration accepted by the NAB at auction represents no more that 44.79% of their assessed market value of the property.

Having considerable knowledge of the NAB's modus operandi was in selling their securities as mortgagee in possession, I formed the view that this auction process had a very odious air about it.

I decided to make inquiries with the aim of speaking to someone who attended the NAB's auction of AB's property. After many telephone calls, I eventually was directed to contact Roy Francis Welham, presently a resident of Chillagoe, Atherton Tableland in Queensland. I hold Mr Roy Francis Welham's Statutory Declaration of the 7 November 2008. The contents of the Statutory Declaration indicated that Roy F Welham solemnly and sincerely declared that:

1. On the 9th May 2003, 1 attended the offices of Quade Real Estate of 37 Lake Street, Cairns, North Queensland. My attendance took place in the a.m.

2. During the said time as per 1. above, Quade Real Estate were auctioning the property described as Lot 1 on Registered Plan No 37060 situated in the County of Nares and Parish of Cairns. The said property contained 1.459 hectares.

3. At the said time as per 1. above, I was under the belief that the property described in 2. above was being auctioned under the instructions of the NATIONAL AUSTRALIA BANK and the current registered proprietor Anita Brigitta Bernstrom.

4. The auction of the property proceeded as arranged and from my recollection, approximately twenty (20) people were in attendance at this auction.

5. The auctioneer proceeded with the introductory formalities and then the bidding commenced. I can recall that the penultimate bid was $213,000.00.

6. 1 can further and clearly recall that the auctioneer refused to accept the final bid (for reasons unknown) and sold the property to the penultimate bidder.,,

The contents of R F Welham's Statutory Declaration as stated above clearly reveals it was a 'sham' auction sale, or a fakement of process as I have described above.

As a result of my inquiries into the NAB's mortgagee sale of AB's property, I ascertained that people were attending the auction with the aim of acquiring the property for the Steiner School to be established in the Cairns District. The two people in attendance were a Mr & Mrs Cleary, so I am led to believe. Both Mr and Mrs Cleary presently have a United Kingdom domicile. They have both been contacted on my behalf, and their opinion sought on what they could recollect at their attendance at the auction.

Mrs Cleary has advised by email message of the 13 October 2008 that she did attend the auction of the property in question and they were very eager to buy the property by themselves in their own right or on behalf of the Steiner School.

Mr Cleary's version of events is that bidding at the auction was rather rapid and there were two prominent bidders. Mr Cleary made a bid; there was then a further bid by one of the prominent bidders. As soon as this latter bid was made, a dispute erupted between these two predominant bidders. This dispute seemed to be prolonged and there was a subsequent bid. The auctioneer immediately accepted this bid without calling for further bids. Mr Cleary did not have the opportunity of making a higher bid which he been quite prepared to do.

Both Mr and Mrs Cleary departed the auction with the nasty taste in their mouth that there had been some "dodgy dealing" (Mrs Cleary's words) going on.

I should point out that the purchaser of this NAB mortgagee auctioned property, Scott Cameron Browning, was AB's neighbour and the constant objector to AB's property development plans. It is fair to say that Scott Cameron Browning was a thorn in AB's development aims. This problem for AB was well known to the NAB who had been kept well informed at all times by their customer.

The Real Estate Institute of Queensland printouts reveal that Scott Cameron Browning's name appears on no less than thirteen buying and selling transactions from 1992 to 2006. Five of these transactions represent the purchase of property in the Cairns district with all being sold within eighteen months. The evidence clearly indicates to me that Scott Cameron Browning was treating real estate dealings as speculative.

Given the known banking circumstances which have caused the NAB to mount demand and default procedures against AB, I am firmly convinced that the NAB's mortgagee auction of her property is most definitely a fakement of process. AB is a victim of fraud and conspiracy to defraud, all due to one of our four major banks in this country, the National Australia Bank.

I have no doubt that the NAB was certainly behind the 'sham' auction sale of AB's property. In my view the NAB's auction sale has no validity, and should consequently be declared void.

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