Brothel Gate Day 5 Full Day

1MR DEVRIES:

Yes the matter's proceeding Your Honour.

2HIS HONOUR:

Yes, thank you Mr Devries.

A couple of brief

3

matters.

4

Procopets will be delivered tomorrow morning by the Court

5

of Appeal and - - -

6MR DEVRIES: 7

Well that's very handy Your Honour.

Excellent

timing.

8HIS HONOUR: 9

Firstly I understand that the judgment in

Would have been more excellent last Friday but

nonetheless we're grateful for what we get Mr Devries.

10MR DEVRIES:

Particularly from the Court of Appeal Your Honour.

11HIS HONOUR:

Anyway and the other matter Ms Sofroniou

12

(indistinct) I understand you're in some pain from a back

13

injury like Mr Johnson - - -

14MS SOFRONIOU: 15HIS HONOUR:

(Indistinct). - - - so the same rule applies to any back

16

sufferers including myself, stand or sit as you need.

17

Now we're right to proceed.

18

witness box.

19MR JOHNSON:

Mr Johnson you're in the

Thank you Your Honour.

Before I put my alter ego,

20

my client, in the witness box I just wish to clarify a

21

couple of things.

22

I'm involved in these proceedings in two alter egos, as

23

defence counsel and also as the defendant.

24

to clarify that each of my alter egos has a separate

25

distinct legal personality (indistinct) Solomon v.

26

Solomon.

27

Johnson a legal practitioner.

28

- under the law firm name as a sole practitioner, Johnson

29

Legal.

30

years and years ago under the business name Sutton

31

Johnson.

Firstly Your Honour recognises that

I just wanted

When I'm in the box I am of course Harold James I was practicing law in my

Before that under my own name, James Johnson and

Your Honour but when I'm addressing you as I am

1.SB:ASC 08/12/08 2Cressy

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211

DISCUSSION

1

now I'm addressing you as the chief legal officer and

2

managing director of an incorporated - - -

3HIS HONOUR:

No you're not Mr Johnson.

4

you are representing yourself.

5

Johnson the defendant - - -

When you address me now

You are Harold James

6MR JOHNSON:

Your Honour the court documents - - -

7HIS HONOUR:

Now that is the point.

8MR JOHNSON:

- - - clearly show that - - -

9HIS HONOUR:

Now Mr Johnson - - -

10MR JOHNSON:

- - - by Sutton Lawyers Pty Ltd.

11HIS HONOUR:

Mr Johnson this strikes me again as a number of -

12

as another of the speeches which you have made in this

13

case which is irrelevant and which is delaying the case.

14

Now you are the defendant, you are as you are entitled to

15

do, to be representing yourself.

16

to the issues you are doing it most capably.

17

you please go to the witness box and we'll continue with

18

your evidence.

19MR JOHNSON: 20

When you (indistinct) Now would

Before I do Your Honour, I raised on Friday my

concern about a witness I subpoenaed who was served - - -

21HIS HONOUR:

Yes.

22MR JOHNSON:

- - - and not here.

He is a vital witness for the

23

defence Your Honour, a Mr Peter Cochran.

24

materials (indistinct) service.

I have here

25HIS HONOUR:

Yes.

26MR JOHNSON:

I'll hand copies to my learned friends.

27MR DEVRIES:

Your Honour's going to deal with this at the end

28

of the - Mr Johnson's - - -

29HIS HONOUR: 30

Mr Johnson's evidence, is there any urgency to do

it now?

31MR JOHNSON:

In terms of time if we (indistinct) of getting

1.SB:ASC 08/12/08 2Cressy

FTR:1

212

DISCUSSION

1

this man, Mr Peter Cochran in court to give his evidence

2

I suggest there's an urgency to deal with this

3

before - - -

4HIS HONOUR:

Well what is your application from that?

5MR JOHNSON:

I'm not sure of the exact technical language to

6

use but the language Your Honour used on Friday was to

7

have him called on a subpoena?

8

of court his failure to show up on - - -

9HIS HONOUR:

I believe it's a contempt

It may be a contempt of court, it has a potential

10

to be but a number of steps have to be established first,

11

and those steps established as a last resort, I have

12

power to order the warrant for his arrest which can be

13

issued under s.150 of the Evidence Act but I would want

14

to know first what steps have been taken to bring him to

15

court before I took any steps against Mr Cochran.

16

say I need to be persuaded that the evidence he is to

17

give is at all relevant.

18

delay those processes we ought to get on with your

19

evidence and we can deal with that matter then.

20

suspect that there may be a small hiatus because one

21

thing I have been told about the judgment in Procopets is

22

that it is long so that the parties will need to observe

23

it and it may or may not affect questions as to the

24

evidence which has been called in the case.

25

any urgency in calling Mr Cochran?

26MR JOHNSON:

I will

Now it seems to me rather than

I

Now is there

As long as I'm not disadvantaged by running out of

27

time to have him brought (indistinct) to give evidence

28

before (indistinct) court Your Honour.

29

ground for urgency.

30HIS HONOUR: 31

That is my sole

Yes well I'd need to be persuaded firstly all the

proper steps have been taken to serve a subpoena, the

1.SB:ASC 08/12/08 2Cressy

FTR:1

213

DISCUSSION

1

subpoena's regular, I need proof of service of

2

Mr Cochran.

3

why - what evidence he's to give and how it's relevant

4

before I took the extreme step of ordering that a warrant

5

for his arrest be executed.

6MR JOHNSON: 7

I'd also need to have some indication as to

I - thank you Your Honour.

I'm indebted for that

explanation, thank you.

8HIS HONOUR:

So that may give you some preliminary indication.

9MR JOHNSON:

Thank you Your Honour.

10HIS HONOUR:

Now I think for the orderly management of the

11

matter apart from yourself and Mr Cochran, are there any

12

other witnesses you will be calling?

13MR JOHNSON:

No Your Honour.

14HIS HONOUR:

Right well I suspect you still have some distance

15

to go in your evidence and then there will be

16

cross-examination of you.

17

with that then we'll deal with issues relating to

18

Mr Cochran.

19MR JOHNSON: 20

Yes Your Honour.

It is better that we proceed

I'm hopeful that I might be able

to complete my evidence-in-chief before the lunch break.

21HIS HONOUR:

Excellent.

22MR JOHNSON:

Thank you Your Honour.

Forgive me Your Honour but

23

in my defence counsel alter ego I did have a question.

24

There is an affidavit that the 2nd defendant by counter

25

claim has sworn.

26

That contains substantial documentation which I

27

actually wish to introduce as part of my evidence in

28

chief.

29

affidavit and exhibits in its totality?

30HIS HONOUR: 31

Is there any problem with me tabling that

If you say that the affidavit contains admissions

on which you wish to rely, you are entitled to do that.

1.SB:ASC 08/12/08 2Cressy

FTR:1

214

DISCUSSION

1MR JOHNSON: 2

I would like to do that

please.

3HIS HONOUR: 4

Thank you, Your Honour.

But that would not seem to be part of your

evidence, as distinct from part of your case.

5MR JOHNSON:

It includes correspondence that I wrote to the 3rd

6

defendant by counterclaim, and it's relevant to my

7

evidence as to my relationship, my eight year plus

8

relationship with Harwood Andrews.

9HIS HONOUR: 10

Your entitled to do that.

Have you got the

documents on the bar table, have you?

11MR JOHNSON:

I do indeed, thank you.

12HIS HONOUR:

Just a moment, you'll need to have the standard

13

Excuse me for a second.

caution applied to you first.

14MR JOHNSON:

Thank you, Your Honour

15
Yes, thank you sir.

Your Honour, this is a document

17

that my defence counsel, my alter ego, mentioned a couple

18

of moments ago, being an affidavit sworn by the 2nd

19

defendant by counterclaim.

20

relevant to the evidence that I as client, as defendant

21

shall be giving in chief, including relating to my

22

ownership of several of the properties, and also my eight

23

year plus relationship with his law firm.

That contains documents

24HIS HONOUR:

Just a moment.

I think the better thing to do is

25

this.

Do you want to tender – are you seeking to tender

26

the whole of the affidavit, or are you simply seeking to

27

put before me now some of the documents which also happen

28

to be exhibited to that affidavit?---All of the above,

29

Your Honour.

30

Mr Hanlon on his affidavit to that effect.

I will be cross-examining extensively

31If he gives evidence?---If he gives evidence as I think he will 1.SB:ASC 08/12/08 2Cressy

FTR:1

215

DISCUSSION

1

have to.

2But do you say contains some admissions by him?---It makes a 3

number of the correspondences I want to put into evidence

4

noncontroversial I believe Your Honour.

5MS SOFRONIOU:

I should say for the court's assistance, that's

6

an affidavit that's been served, but not filed in any

7

proceeding.

8

---Yes.

We say that it doesn't contain admissions?

9I gather from what the witness has just said, that he wants to 10

use the correspondence that it attaches, in which case my

11

submission would be that that would be his tender of

12

documents that he happens to have come across that way.

13HIS HONOUR: 14MS SOFRONIOU:

But that would be - - -

15

It's not 2nd and 3rd defendant's evidence as to

which none has been given yet in this proceeding.

16HIS HONOUR: 17

I understand that, but if he wishes to also tender

the affidavit as identifying those documents - - -

18MS SOFRONIOU: 19

Certainly, Your Honour, but once again that

would be his tender.

20HIS HONOUR: 21

Of course, it's part of his exhibit, it's not part

of your case.

22MS SOFRONIOU: 23HIS HONOUR:

Thank you, Your Honour.

24MS SOFRONIOU:

I fully understand that myself Rena.

25

It was for the witness' benefit too,

Your Honour.

26HIS HONOUR: 27MS SOFRONIOU:

Yes, I understand.

28HIS HONOUR:

It's difficult. You'll be seeking to effectively tender the

29

affidavit, and tendering any exhibits that are attached

30

to it?---Yes, Your Honour.

31

to the contents of the affidavit, as I will be taking

1.SB:ASC 08/12/08 2Cressy

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216

I'm making no admissions as

DISCUSSION

1

objection with, and strenuously cross-examinating –cross-

2

examining on most of the statements in the affidavit

3

itself.

4I don't know that you can do that.

If you're tendering the

5

document, you're tendering it in case it contains

6

admissions, you will also tendering it – you're therefore

7

tendering it as to the truth of its contents.

8

the good with the bad, and the principles that apply are

9

that the other side are entitled to rely on any

You take

10

explicatory materials, or any admission material?

11

---Your Honour, my defence counsel, alter ego,

12

anticipated that might be the outcome of the rules.

13

on that basis, what I would like to tender then is simply

14

the exhibits one to 15.

And

15Yes?---And I won't tender the affidavit, it depends on cross16

examination - - -

17Right?--- - - - of Mr Hanlon, Your Honour. 18MR DEVRIES:

I should indicate, Your Honour, that I've – whilst

19

I've seen a copy of the affidavit itself which provided

20

to me as a courtesy by my learned friend, I haven't

21

copies of any of the exhibits, and that - - -

22HIS HONOUR:

If you need time to look at them we'll get

23

instructions.

24

thanks Mr Devries.

25MR DEVRIES:

We can cater with that - cater for that,

I'd be opposing the tendering of all of the

26

exhibits as one tender, Your Honour.

27

dealt with one by one.

28HIS HONOUR:

They should be

That's what I understand Mr Johnson will be doing.

29

I think he's seeking simply to utilise those documents,

30

and we'll see what gives anyway.

31

---I'll tender them on an individual basis.

1.SB:ASC 08/12/08 2Cressy

FTR:1

217

Right Mr Johnson?

DISCUSSION

1Yes, well that's a better way to do it?---Thanks Your Honour. 2

I shall resume my evidence in chief from Friday

3

afternoon.

4Right?---Where I was primarily describing, giving arrangements. 5Yes, you were – at the end of it you were describing your 6

payment of Ms Cressy's fees at Stott's and Taylors.

You

7

were, told me that you had paid child care for the

8

children in August 2003, and that you were also working

9

very long hours.

That's a note that I finished at – that

10

you were finishing on?---Thank you, Your Honour.

11

believe um, in doing so, because um I was giving evidence

12

about living arrangements um, some evidence was

13

introduced as to the ownership and funding of several of

14

the properties.

15Yes?---As a peripheral. 16

I

I will come back to that as a separate

issue, um.

17Yes, are you also going to come back at some stage to the 18

evidence that Ms Cressy has given as to various

19

improvements she said she made at the properties?---Yes,

20

yes Your Honour.

21You'll need to address that in your evidence.

You have in

22

part, but it's a matter which I've got noted to bring to

23

your attention at some stage?---Yes.

24But I'll leave you, you go in your order, and we'll proceed? 25

---Excuse me Your Honour, I have some pages of notes.

26Yes?---I would like to have a look at, if I may be excused? 27Yes?---Thank you, Your Honour.

I believe I covered in, in

28

general terms, a number of residents.

29

the Dandenong, residents at Illouera Avenue, Grovedale,

30

Gheringhap Street, Geelong, Osborne Street, South Yarra,

31

Dorrington Street, Point Cook.

1.SB:ASC 08/12/08 2Cressy

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218

Residents up in

I believe that there are DISCUSSION

1

three other properties that I need to - three other

2

residencies that I need to describe in terms of living

3

arrangements and there will be an introduction of

4

financing issues there but I will come back to financing

5

separately.

6

Gibson Street, Caulfield.

7

because chronologically that was the next property I

8

purchased.

9

see - shortly after meeting Mr Antonos Ioannou who gave

The three I need to talk to firstly are I will do this at this stage

That was a property that I purchased - let me

10

evidence on the last most recent day of the trial.

I met

11

Mr Ioannou via an introduction from the manager of my

12

apartment at City Point, 668 Bourke Street.

13

rental manager who was there prior to Ms Karen Briggs who

14

has also given evidence.

15

apartments for sale and I was looking at purchasing an

16

apartment rather than continuing to rent, and Mr Troy

17

said I will hear details through a mortgage broker, I

18

believe he can do 106 per cent loans, you should talk to

19

him, he's very good and I did.

20

Ioannou was actually in my 909 apartment at City Point.

21

I have a strong recollection of that because he struck me

22

as very young to be in that position and I believe at the

23

time he was barely 20 years old.

24

but I did not know if he could walk to walk, so my second

25

meeting was with him at his offices and he was kind of an

26

off shoot of Raine and Horne.

He was the

Mr Troy said he had a number of

My first meeting with Mr

He could talk the talk

27Now, just remember to stay relevant?--- Thank you Your Honour. 28You are again straying into detail, only tell me about the 29

detail that are relevant to this case?--- The relevance

30

here is that my purchase of 92 Gibson Street, Altona, was

31

solely due to that relationship I formed, that

1.SB:ASC 08/12/08 2Cressy

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219

DISCUSSION

1

introduction.

2So you met him through your occupation of the premises at 3

Bourke Street?---Yes, and initially we looked at some

4

scenarios where I could either buy an apartment in that

5

building, because it's a terrific place to live, or I

6

would purchase some acreage down the coast, Torquay,

7

Lorne way.

8

worked.

9

business called Syndica was an investor club.

We looked at the numbers, neither of them

One of his projects that he was working on, his I

10

subscribed to the club.

11

membership fee, and what they were doing was they were

12

going out to developers and they were signing up a deal

13

with the developer to pre-sell developments of - in this

14

case it was their first deal, 13 units.

15

couple of other projects that I didn't get involved in

16

later but this was the first one.

17

fee as marketing agent for the developer.

18

would go you beaut, we now get construction finance

19

because we have a guaranteed take off once construction

20

is completed.

21

for Gibson Street.

22

because as members of the investor club we were pooling

23

our bargaining power, so it was about a $25,000 rebate

24

which brought the effective price down to just under

25

$400,000.

26

at I believe it was 90 per cent finance.

27

properties at all times were very highly leveraged and

28

every time there was an equity component I would

29

refinance again and I will explain that when I talk about

30

the money side of the situation.

31

supposed to settle in June of that year which I believe

1.SB:ASC 08/12/08 2Cressy

I paid, I think it was a $500

They had a

So they would earn a The developer

Prices were locked in at I think $425,000 That was subject to a bulk rebate

Bank finance was organised through Mr Ioannou

FTR:1

220

All of my

That property was

DISCUSSION

1

was 2005 but it didn't, there were long delays, the final

2

fit out, the soft fit out took forever.

3

why, Your Honour, but it's verging on irrelevance.

4

Basically it took another year, so the units were

5

actually completed - - -

I can explain

6Mr Ioannou told us there was a delay of some time, settlement 7

didn't take place until some time in 2006?---The units

8

were actually completed, Syndica were also at that stage

9

through their Raine and Horne association managing -

10

rental managers for the project, organising tenants to go

11

in and for my unit there were some overseas students to

12

go in and my unit has always been tenanted to overseas

13

students.

14

settlement occurred in June 2006, a year later than it

15

was supposed to.

16

cent per annum, which means when we submitted finance

17

applications I ended up borrowing about 112 per cent of

18

what I needed, so it covered all the stamp duty which

19

wasn't substantial because of the off the plan savings.

20

I covered all of the outgoings and when settlement

21

occurred firstly I received about $11,000 cash back from

22

the lender, after all expenses, all statutory charges

23

were covered, it was about $11,000 left over, borrowed

24

more than I needed which went into my bank account.

25

I would like to tender my documentation.

26

the full contents of what Your Honour received as

27

Exhibit A on one of the first or second days of the

28

hearing.

29

pages, which was a six page fax from myself to Mr Hanlon

30

and - it's actually half of an exhibit, Your Honour, to

31

that affidavit I mentioned previously.

The tenants went in in February of 2006,

The value increased at about 20 per

Now,

It's actually

I apologise, this is going to be detached

1.SB:ASC 08/12/08 2Cressy

FTR:1

221

DISCUSSION

1Yes, well, you tender what you need to tender?---OK, at this 2

stage it is half of Exhibit DWH14.

3Just tender the documents from that exhibit you need to 4

tender?---Yes.

5And I'll receive them as Exhibit 15 in this proceeding?---Yes. 6What are you tendering?---That is the first two pages or 7

first - - -

8Yes?---First two pages are actually Exhibit A, Your Honour 9 received from Mr - - 10 11#EXHIBIT 15 Faxed letter from the defendant Mr David 12 Hanlon dated 29/10/2007 together with 13 four pages of attachments 14WITNESS:

Thank you, Your Honour.

15HIS HONOUR: 16MS SOFRONIOU:

Do you wish to see that, Ms Sofroniou?

17HIS HONOUR:

Yes, if I may, Your Honour.

18

Yes, I'll just put a yellow sticker on it so we

don't get too lost.

19MS SOFRONIOU:

Your Honour, inasmuch as the document contains

20

any conclusions of law that is the matter for Your

21

Honour's decision - - -

22HIS HONOUR: 23MS SOFRONIOU:

Yes.

24

Obviously we'll get to that but on the basis of

the fact of - - -

25HIS HONOUR:

On the fact of the letter, yes, I follow that.

So

26

it's received for the fact of the letter, not for the

27

truth of its contents.

28

Your Honour.

29

defence counsel, I'm just hoping for a ruling.

30

understand whether it is possible or proper within the

31

rules of the court or the rules of advocacy that

32

Mr Devries did on Thursday afternoon hand up two pages of

33

that four page document which become Exhibit A.

1.SB:ASC 08/12/08 2Cressy

Yes, Mr Johnson?---Thank you,

If I might channel my other alter ego

FTR:1

222

I do not

Is that DISCUSSION

1

a permissible or an appropriate thing to do, to hand up

2

two pages of a six page document?

3He tendered that as an exhibit.

I recall at the time you

4

protested that it was incomplete.

5

tender?---No, I wasn't on my - - -

You have completed the

6I'm not here to pass on the propriety of it.

Mr Devries no

7

doubt had instructions that that was a document that was

8

to be tendered.

9

evidence?---Your Honour, I have a lovely speech on our

10

Now, we will continue with your

Lady Portia's alter ego about - - -

11Well, we won't listen to speeches?---Australian mercy and 12

Australian justice, but I will move on, Your Honour.

13You will move on?---Thank you, sir. 14MR DEVRIES:

Just while we are having our break in Mr Johnson's

15

evidence, I rise to make objection to him,

16

notwithstanding Your Honour's ruling before he stepped

17

into the witness box, adopting two different egos.

18HIS HONOUR:

He is a witness at the moment but at the same time

19

he is representing himself, and the matter he raised was

20

not necessary to be raised at that time, but I can't shut

21

him out in case there are matters that pertain to his

22

evidence.

Mr Devries, can we please press on?

23MR DEVRIES:

Yes, sorry, Your Honour.

24HIS HONOUR:

This case was given a four day estimate.

It

25

behoves everyone to - a two day estimate, we're now

26

exactly double that, to move the case along.

27

only done by sticking very rigidly to the relevant

28

issues.

29

the next part of your evidence?---Thank you, Your Honour.

30

Just - just on that estimate of trial, I did explain on

31

the morning of the trial last week - - -

And that is

Now, you've just tendered that document, what's

1.SB:ASC 08/12/08 2Cressy

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223

DISCUSSION

1I'm not interested in your explanation.

I'm interested in your

2

evidence?---Thank you, Your Honour.

3

contains extracts of the contract by which I purchased

4

Gibson Street, that contains a letter from myself to my -

5

to one of the settlement parties, I believe the

6

settlement agents from my bank.

7

and I believe there's a page from my AMP bank statement

8

which shows the surplus borrowings of that $11,000

9

deposit into my bank account, all in the last week of

10

That document

Settlement calculations,

June 2006, Your Honour.

11Yes?---I had discovered at that point the holy grail of 12

investing because I had not only a cash flow neutral

13

investment but cash flow positive.

14

more attractive is that Syndica as the management agents

15

had of course the rent from the tenants collected up in

16

their trust account from February up to June of that

17

year, so the question for them was who got those monies.

18

The vendors who had delayed and were in breach of their

19

contract by not settling a year earlier, or the

20

purchasers.

21

settlement about $7500 being the rent for that period

22

when I was a purchaser on the contract, not having

23

settled.

24

come to pick that particular apartment?

25

never had keys in my possession.

26

the door.

27

located to the university, the racecourse and sporting

28

fields.

29

units left, eight, nine and 13.

30

building decision, said to Mr Rianou, "You're doing

31

fantastic.

What made it even

And as it happened, I received after

So it was doubly cash flow positive.

I can say I've

I've never been inside

I've driven past and had a look.

I've never been in the door.

1.SB:ASC 08/12/08 2Cressy

You pick the one." FTR:1

224

How did I

It's lovely

There were three

I, as a relationship

He then told me that he'd DISCUSSION

1

picked nine for me and eight for him.

My recollection is

2

that nine was maybe $5000 more expensive but they're

3

virtually - they're virtually Siamese twins with a

4

conjoined party wall, Your Honour.

5

all I need to say perhaps in all of these proceedings

6

about that particular property, Your Honour.

That's, I believe,

7You still retain that unit, do you, Unit 9?---I am still the 8

registered proprietor and I submit the sole legal and

9

beneficial owner of all of these properties in all of

10

these proceedings, with the exception of 12 Lisa Court.

11Yes, well, I was asking you still own Unit 9, No.2 Gibson 12

Street.

I think the answer is yes obviously?---It's a

13

question of what you mean by own, Your Honour, which is

14

different for lawyers and for accountants under the

15

accounting standards.

16

control of the property?

Do I have effective use and

17Mr Johnson, don't be evasive. 18

That property I do. Has it been sold?---That

property has not been sold, Your Honour.

19Thank you.

Now, what is the amount of debt secured over it at

20

the moment?---Your Honour, I did wish to discuss the

21

financing separate from the living arrangements, but I'm

22

happy to do that.

23You're going to do that later, are you?---Yes, Your Honour. 24All right?---Yes. 25You do it in your order?---Thank you, Your Honour.

In the

26

materials that were submitted on Friday was the

27

reconstruction of my financing records at the time that I

28

purchased Gibson Street.

29

and they were identified by Mr Ioannou that there will be

30

lots of bank statements, credit card statements that will

31

record the typical history that all of my income for the

1.SB:ASC 08/12/08 2Cressy

FTR:1

They were put in as an exhibit

225

DISCUSSION

1

period, which was substantial, paid into my account by

2

way of cheques and/or direct debits from either a billion

3

dollar statutory corporation, Barwon Regional Water

4

Authority, where I worked as a hybrid legal counsel, or

5

the greater proportion of the money is actually from

6

Primelife Corporation where I also worked as a hybrid.

7So where were those - into what account was that income paid? 8

---Into my personal - well, my business bank account, me

9

being - practising as a sole practitioner, at that stage

10

predominantly under my own name Your Honour.

11

bank records confirm sources of funding for that loan

12

application.

13

I've said earlier.

14

am concerned if I don't give this evidence now I might

15

accidentally omit it later.

16

plaintiff's claim against me was not set in any legal

17

proceedings in Your Honour's court, it was recorded in

18

the jurisdiction of the Registrar of Titles by way of a

19

caveat lodged.

20

Now, that caveat claimed an interest in six of my

21

properties including Gibson Street because of

22

contributions that Ms Cressy Junior had made to my

23

construction acquisition and improvement of my

24

properties.

25

to Mr Hanlon and Harwood Andrews that she had not

26

contributed to the acquisition, construction or

27

improvement of any of my properties, simply because I

28

hadn't contributed anything, Your Honour, except entering

29

into mortgage obligations.

30

property portfolio, of course it has only been my money

31

that has gone to service the mortgages for as long as I

1.SB:ASC 08/12/08 2Cressy

So lots of

I didn't not put in a dollar of finance, as I might point out at that point - I

At that point the

On the - I believe it was 7 May 2007.

Now, this was an easy one for me to explain

FTR:1

226

During the life of my

DISCUSSION

1

could, which was fine up until about the middle of 2007

2

and I managed to hang on, continuing to service by

3

borrowing moneys elsewhere and collecting unbilled whip,

4

I struggled through until late 2007 keeping most of the

5

mortgages up to date, even though as my income for that

6

tax year, I went backwards by about $158,000.

7

the document that I have just exhibited - - -

So I write

8Do you have a copy of the caveat?---I do indeed. 9If you do you will need to tender that?---Thank you, Your 10

Honour.

It's amongst the exhibits.

11Even if you don't do it now, if you just simply make a note to 12

tender it?---I am grateful to do it now, Your Honour,

13

because it is a lot of properties and there's a lot to

14

come back to.

15

through this Your Honour, but if I do happen to overlook

16

describing some of the properties in my evidence I will

17

have given Your Honour enough general information perhaps

18

at this stage.

19

can't off hand identify from property details which one

20

was Dixon Street - Court, Your Honour.

I'm hoping at this stage to talk basically

This is the caveat, Your Honour, and I

21I don't need the exhibit notes. 22

You said that's over the six

properties?---Yes, one of those is Dixon Street, Your

23 Honour. 24 25#EXHIBIT 16 26 27

Copy caveat, dated 8/05/07, caveat no.AF058952B lodged on behalf of the plaintiff in respect of six properties.

28HIS HONOUR:

Does counsel wish to see that?

29MR DEVRIES:

No, Your Honour.

30MS SOFRONIOU: 31HIS HONOUR:

No, Your Honour. Thank you?---Thank you Your Honour.

I protested,

32

I sent a number of letters to Mr Hanlon during October,

33

November, I was desperate for funding at that stage, I

1.SB:ASC 08/12/08 2Cressy

FTR:1

227

DISCUSSION

1

was trying to keep all of the properties.

2

Ms Cressy and her children were living at the Altona

3

property with my blessing.

I regarded that at all times

4

as a generosity on my part.

The last thing that anyone

5

could ever accuse me of being is a delinquent dad.

6

have - and I will give further evidence detailing this -

7

a history of generous child support to Ms Cressy.

8

think typically ten times what I have now as a result of

9

this conflagration found out to be my legal obligation,

10

and that included her and her three children, including

11

the youngest one, the littlest Miss Cressy, who is

12

reputedly to be my daughter and certainly on the

13

statutory records, the birthday certificate, she is shown

14

as such.

15

refinance the Caulfield property and of course I was

16

blocked, so I thought well, how am I going to resolve

17

this with these people.

18

can't see the logic in this, we're just not going to get

19

anywhere without requiring court involvement.

20

happened the caveat was removed from the property, the

21

title details from the caveat to the property - there

22

should be a reference to the title of that property in

23

the 29 October letter, my penultimate exhibit Your

24

Honour.

But I was running out of funds.

At that stage

I

I

I looked to

This is a bit of a test, if they

25Could I have a look at Exhibit 15 please.

As it

Thank you.

Yes,

26

well I can't pick it up there but I don't think it really

27

matters?---Thank you, Your Honour.

28

that caveat was removed, I received no communication from

29

Ms Cressy or from Harwood Andrews whatsoever.

30

running weekly cheque searches through my title searching

31

agents and one morning I found that that caveat had been

1.SB:ASC 08/12/08 2Cressy

FTR:1

228

What transpired is

I just was

DISCUSSION

1

removed.

2When was it removed?---Early November Your Honour.

Just as,

3

just as I'd received no communication from Ms Cressy or

4

her lawyers regarding the caveats being put in, in May

5

07, I received no word at all, no explanation about them

6

being removed or that caveat being partially withdrawn to

7

the Caulfield property.

8So it was removed in relation to the Caulfield property?---Yes 9

Your Honour, yes.

That allowed me to redo my financing.

10

There were a couple of hiccups because my financing had

11

been underway for too long.

12

not proceeding and it all had to be reinitiated.

13

refinancing finally occurred in the week or weeks, really

14

just the last week before Christmas 2007.

The bank had shelved it as That

15Why were you refinancing at this stage?---I needed additional 16

funds to sustain the status quo.

My earning capacity had

17

been decimated by the stress and the strain associated

18

with this process.

19

Federal Magistrate O'Dwyer's jurisdiction.

20

lot, a lot of things happening Your Honour.

There was also the process in the There was a

21So anyway you - the caveat was lifted?---Yes. 22And you refinanced?---Yes I did Your Honour, Your Honour.

I

23

think that's probably all I need to say about that point

24

because I will pick up the story on the caveats in the

25

financing.

26

Altona, 166 Queen Street - - -

Two other properties I need to talk about are

27Yes?---- - - and I think Torquay completes my list. 28Yes?---I might speak about Torquay last Your Honour because 29

it's the easiest.

This is a property which - - -

30Now which one are you talking about now?---Endeavour Avenue, 31

Torquay.

1.SB:ASC 08/12/08 2Cressy

FTR:1

229

DISCUSSION

1Right?---All I wish at this stage Your Honour because I will 2

this was my residence from about mid-September 2007.

3

It's brought into these proceedings because of the

4

amendment that, as defence counsel, I waived through to

5

the statement of claim on Friday morning.

6

the contract.

7

It was dated 18 September 2007.

8

day under a standard residential tenancy lease and I just

9

wanted to draw the court's attention to the settlement

It's a copy of

I only had a copy that is signed by me. I moved in the following

10

date which was set for 9 April 2008.

So I was allowed

11

better than six months settlement and I was a tenant at

12

the property until settlement was achieved conjointly

13

with the refinancing of Gibson Street in that week before

14

Christmas 2007.

15

Your Honour is simply tender a copy of that contract of

16

sale.

And all I'd like to do at this stage

Thank you Your Honour.

17It shows the purchase price of $397,500 and you didn't pay a 18

deposit, you paid a 5 per cent deposit bond.

You - - - ?

19

---Your Honour thank you, you've just reminded me - - -

20Exhibit - I'll just note this exhibit. 21 22#EXHIBIT 17 Contract of sale of 7A Endeavour Drive, 23 Torquay dated 18/09/07 between Louise 24 Toebone as the vendor and the defendant, 25 Harold James Johnson as purchaser. 26Do counsel wish to - - 27MR DEVRIES:

I was just anticipating questions that would

28

(indistinct) Your Honour, but whilst he's continuing his

29

evidence - - -

30HIS HONOUR:

You wish to have a look at it?

31MR DEVRIES:

Yes sir.

32HIS HONOUR:

Yes?---Just one more detail which I wouldn't

33

otherwise mention here but to correct an inference that

1.SB:ASC 08/12/08 2Cressy

FTR:1

230

DISCUSSION

1

Your Honour drew.

I never paid a deposit bond.

2Yes?---There were delays with that which I was quite happy with 3

because as I settled pre-Christmas, I didn't have to pay

4

the $1000 for the deposit bond.

5Do I understand that you financed Torquay out of the 6

refinancing of Gibson Street?

Is that part of that

7

package?---Yes, yes Your Honour.

8

I put in was part of about 30 per cent, 35 per cent of

9

the balance of funds from the refinancing of Gibson

The 10 per cent deposit

10

Street.

The balance of the funds went to living

11

expenses, child support for my estranged wife, Julie and

12

my three children in the magnitude of $2200 a month,

13

fixing up some arrears in some of the mortgages and I'm

14

trying to think of the word the child support agency

15

uses.

Some of the money flowed and benefitted Ms Cressy

16

also.

She was using telephones that - services that I

17

organised at Queen Street, Altona.

18

those phone expenses during December, January skyrocketed

19

not astronomical - well astronomically and astrologically

20

because there were a lot of 900 phone calls to psychic

21

angel help lines and those sorts of things.

22

normal bills which I was paying to benefit Ms Cressy and

23

the children on top of allowing them to continue

24

occupancy of the Altona house went up from around about,

25

for the mobile phone she was using and the landline to

26

the house, maybe about $300 a month.

27

over $2000.

28

telephone statements which maybe I should tender in

29

evidence Your Honour?

There were a lot of -

So the

They went up to

Now I do have copies of those bank -

30That's a matter for you?---Forgive me for standing down Your 31

Honour but I believe (indistinct) will.

1.SB:ASC 08/12/08 2Cressy

FTR:1

231

This is going to DISCUSSION

1

be unsightly Your Honour but - and forgive me because as

2

a taxation lawyer, an indirect taxation lawyer my

3

familiarity with proceedings in this honourable court is

4

with the case dated process for (indistinct) objections.

5Well let's just stick to the point?---I, I had thought Your 6

Honour that all of these documents, all of the affidavits

7

and exhibits to date form part of the body of evidence as

8

part of the case stated and I realised that was my lack

9

of experience - - -

10I think that I told you - - - ?---You definitely - - 11- - - I've lost track of time, how many times on last week that 12

is not so?---May I hand up Your Honour this is a table

13

showing during the period October 07 including up to end

14

of February 08, including that period with the phone

15

charges, some of which were paid out of the proceeds from

16

the Gibson Street refinancing.

17What are you actually handing to me then?---This, this is an 18

Exhibit HJJ005 from my affidavit in these proceedings as

19

7 March 2008.

20Yes but what is it?

Is it a bill or something?---It's a table

21

summarising non financial benefits, I believe the child

22

support agency calls them, the moneys I spent to benefit

23

Ms Cressy and the three children.

24Just hand it up and you're seeking to tender it.

I'll have a

25

look at it?---And may I hand it up with the exhibit note

26

to encourage Mr Devries or Ms Sofroniou to cross-examine

27

me on that affidavit.

28What this appears to be is a document headed, "Summary of non 29

agency payments from Harold James Johnson to/for Pippin

30

Cressy from 01/10/07 to 27/02/0 [sic] together with

31

attached", are these from Telstra or who are they from?

1.SB:ASC 08/12/08 2Cressy

FTR:1

232

DISCUSSION

1 2

---They're telephone invoices.

3Right, "Telephone charges for the period", looks like, "October 4 2007 to February 2008"?---Yes. 5 6#EXHIBIT 18 Summary of non agency payment from Harold 7 James Johnson to/for Pippin Cressy from 8 01/10/07 to 27/02/08 together with 9 attached telephone charges for period 10 October 2007 to February 2008. 11MR DEVRIES:

May I rise?

12HIS HONOUR:

You may - yes you may.

13MR DEVRIES:

To raise the question of the relevance of this I

14

was ruled out by Your Honour raising matters that were

15

post separation.

16HIS HONOUR:

Well I'm not sure I ruled it out.

I think you

17

keep saying that.

I raised with you the relevance.

18

told me that under the authorities they weren't relevant,

19

but - and you accepted that, therefore they would not be

20

admissible.

21

(indistinct) another party in this case has got a

22

(indistinct) but if that's - - -

I think so far as the ruling went, if

23MR DEVRIES:

Perhaps I - - -

24HIS HONOUR:

Well do you wish to object to this?

25MR DEVRIES:

Yes Your Honour.

26

You

I object to it as to its

relevance to this proceeding.

27HIS HONOUR:

Yes?---May, may I respond on it's relevance?

28MR DEVRIES:

Potentially Your Honour, the calculation sheet,

29

that seems.

30HIS HONOUR:

Yes.

31MR DEVRIES:

I would submit that.

32HIS HONOUR:

The calculation sheet seems I think to be nothing

33

more than a useful summary from the documents it

34

supported.

1.SB:ASC 08/12/08 2Cressy

But if you object, you object, and FTR:1

233

DISCUSSION

1

we'll - - -

2MR DEVRIES:

Yes, I do object, Your Honour.

But Your Honour,

3

can we do it on, with respect Your Honour, can I suggest

4

we do it on this basis in order to save time.

5HIS HONOUR:

Yes.

6MR DEVRIES:

I've raise the objection, and I'll address

7

Your Honour at a later stage on - - -

8HIS HONOUR:

Yes, on relevance - - -

9MR DEVRIES:

And we'll wait to your given - - -

10HIS HONOUR: 11

Yes.

I accept it's subject to your objection, is

that right, as to relevance?

12MR DEVRIES:

Yes, relevance and weight, Your Honour.

13HIS HONOUR:

That document will be Exhibit 18, that is the

14

document entitled summary of non agency payments from

15

Harold James Johnson, 2/4 Pippin Cressy from 1 October

16

2007 to 27 February 2008 together with the attached

17

telephone summary of charges for that period.

18

wish to see them?

Do you

19MR DEVRIES:

Not at this stage.

20HIS HONOUR:

I'll return the exhibit note, that's not part of

21

the document.

22MR DEVRIES: 23

Thank you, Your Honour?---Your Honour, may I say

something on relevance?

24HIS HONOUR:

Yes?---The relevance, now I, I don't know whether

25

Ms Cressy has presented enough cases to even bring it

26

within the field of um Part 9 of the Property Law Act.

27

It would be my submission in submission time,

28

Your Honour, that she, she simply failed to do that on

29

anything resembling Briginshaw standards.

30

is the suggestion that I used all of the monies from the

31

refinancing of Gibson Street solely for my own benefit.

1.SB:ASC 08/12/08 2Cressy

FTR:1

234

The relevance

DISCUSSION

1I follow you?---My - - 2You say, "No, some of it went back to the plaintiff"? 3

---Your Honour, I said - of course I did, because of

4

course I was holding title to do it.

5Yes?---And I say, "But even so out of generosity, out of caring 6

for Ms Cressy's children, particularly my, my little

7

girl.

8

a roof over their head, working out how to keep it".

I did not leave them financially stranded.

I had

9Your point simply is - - -?---Some of the monies flew back. 10I follow?---If there ever is a question of contribution, or not 11

that I submit there ever will be, there's relevance on

12

that point as well.

13There's it'll be relevant on – it'd seem to me to be relevant 14

on that point?---Yes.

15Because the argument that has been made is that you effectively 16

purchased, or were able to purchase Endeavour Drive out

17

of the refinance of Gibson Street.

18

you also say that the refinance of Gibson has been used

19

also for the benefit of the plaintiff?---Yes, yes.

20I follow that?---Thank you, Your Honour.

That is right, but

May I also say at

21

that point, that even though I was a purchaser of – under

22

contract for Endeavour Drive, I had no intention or

23

expectation of completing that contract.

24

under a twelve month residential lease in any case.

25

expected to um vacate my occupancy at the end of that

26

lease.

27

joined up together, because the application to buy the

28

new property was the engine that pulled along the

29

refinancing.

30

the bank, Your Honour, where you're in financial

31

difficulty, but if you refinancing to buy property, they

I was there I

What happened, is in the financing, the two got

1.SB:ASC 08/12/08 2Cressy

It's very hard to right – refinance with

FTR:1

235

DISCUSSION

1

love you.

And what happened is, they got stapled, so I

2

had no choice but to settle um on the purchase.

3

purchase.

4

funds that went to the purchase of Endeavour Drive to

5

much better use Your Honour.

6

lawyers, for example, to represent me in this case,

7

Your Honour.

8

in support of that, and I know this is a week that

9

supported that, but that contract for 7 Endeavour Drive

I had to

I'm disappointed because I could have put the

I could have hired some

So I was very disappointed with that.

And

10

refers to me purchasing and/or nominee.

11

freehand to purchase, and wanted to purchase, I most

12

definitely would not have purchased that in my own name.

13

That would have gone into a corporate, or a more asset

14

defensive structure, me having learnt a little bit during

15

the course of 2007 about the need to protect yourself.

16

Um, I've said more about Torquay than I intended.

17

Altona, now, Ms Cressy and I would spend time together

18

with the children um during 2005/2006, while Ms Cressy's

19

family was living at Dorrington Street, and I was living

20

in my apartment in the city.

21

we would regularly during the summer take the children to

22

the beach.

23

membership of the Altona Lifesaving Club.

24

lovely community.

25

the three Cressy children.

26

would sometimes, perhaps once a month, come and train for

27

little nippers along the beach as well.

28

very unhappy with the children's school at Point Cook,

29

even though it was literally across the road from the

30

house they were living in.

31

culture, but it sprung up out of nowhere.

1.SB:ASC 08/12/08 2Cressy

If I'd had a

Um

Now amongst other things,

For a brief period, I organised a um family

FTR:1

Altona has a

The members were Ms Cressy, myself and

236

My other daughter Jessica

Um Ms Cressy was

Um grave misgivings about the Five years DISCUSSION

1

earlier there was sheep paddocks.

In the second year of

2

the school, I think there were, this is at Point Cook,

3

there were 300 students, 200 of them were preps,

4

Your Honour.

5

perhaps I'm being a bit too honest.

6

hen type.

7

enthusiasm about living in that house that I was making

8

available to her.

9

the kids to Altona.

It had no class, no culture, it was very It was very battery

Um she also didn't like – she'd lost

She decided she wanted to move with At that stage we had a number of

10

conversations, um, I told her that I had no predacity to

11

buy another house, Point Cook was it.

12

stage, I might have mentioned to her the Gibson Street

13

property, in the context of saying, "Well I'm waiting on

14

one to settle.

15

available for the time being".

16

um she was starting to get a little distressed again, and

17

that was impacting on the children.

18

go out, go out and look in Altona.

19

looking because I identified it's coastal, it's the

20

equivalent - if you put the compass on Melbourne and you

21

run it around through Altona you come up way closer than

22

St Kilda, so it's a hidden gem, and at that point in 2006

23

the property market had been cooled.

24

property up for sale for a very long time.

25

at other properties, there was a vacant block which was a

26

funny shape across the road about 600 metres south on

27

Queen Street which they wanted a ridiculous price from.

28

I had a talk to the estate agent whom I bought it through

29

from John Contact Real Estate.

30

for about a year at $560,000, hadn't sold.

31

agent said to me, look, you'll probably get it for about

1.SB:ASC 08/12/08 2Cressy

Um it's at that

That has taken up a lot of my cash flow

FTR:1

237

Um nevertheless because

I said to her look, Now, I too had been

I had seen that I had looked

It had been advertised The estate

DISCUSSION

1

$520,000.

I did some due diligence, basically looked up

2

the titles office records.

3

had been there a long time, they had no mortgage, they

4

had purchased in I think 1986 and they'd paid $78,000.

5

Now, when you know you've got a very long term owner

6

there, they were elderly, they were looking to downsize

7

in comfort and have cash left over and there is no

8

mortgagee that needs discharged, you know that they've

9

got a lot of latitude when you are going to negotiate

I could see that the owners

10

with them.

11

role and I talked them down and then I said to Ms Cressy,

12

all right, you go and look at it independent from me, see

13

what you can do.

14

Ms Cressy then went in, she was my agent, she was

15

actually my employee at that time Your Honour and that is

16

a whole detailed story I will come back to later.

17

rang me, and this was Valentine's Day 2006, 14 February

18

2006, said James, guess what, they'll take $500,000.

19

said you beaut, you drive in, come into the city, see me,

20

I'll give you $1000 cash, take it out, give it to the

21

agent, make sure the receipt is in my name, collect the

22

contracts for me.

23

the TV show the Apprentice.

I'd done this a number of

24

times in a number of fields.

I was trying to get her

25

interested in anything but prostitution.

26

she hadn't been working as prostitute for all of the time

27

that she had been living at Point Cook.

28

agitated, I was concerned she was going back to do it.

29

That's the explanation for me giving her on average $4000

30

a month in living benefits.

31

strictly assuming DNA testing confirmed that Illyana was

1.SB:ASC 08/12/08 2Cressy

So I basically adopted the good cop, bad cop

FTR:1

I reckon we're looking at about 500.

She

I

Now, at this stage in our relationship

238

I believed that

She was getting

My legal obligations

DISCUSSION

1

my biological daughter was about $400, a tenth of that.

2

What I was giving my estranged wife to whom I'm still

3

legally married, it's our 20th anniversary in six weeks

4

time.

5

married for nearly 20 years.

We have been estranged for a decade but still

6That's not terribly relevant.

What do you say you were paying

7

Ms Cressy at this point?---The benefits of at least $4000

8

a month, more than double the 2200 a month that I was

9

giving my wife for my three undisputed children.

So much

10

resource to keep her from going back into prostitution

11

because that was not a good life for her and you can

12

imagine the flow on effects for the children.

13

why this witness Mr Peter Cochrane was so critical to the

14

case.

15

and was himself part of the substantial harm that that

16

lifestyle brings to a family unit.

17

that Mr Ioannou was kind enough to identify for Altona

18

there will be documentation showing again my tax returns,

19

my bank statements, my direct debited income, fees

20

collected from Barwon Water or Primelife.

21

series of receipts for the $50,000 deposit.

22

statutory declaration, this is concerned because I'm

23

self-employed, did I have any hidden borrowings.

24

to give a statutory declaration to the effect that it was

25

only my moneys and I did that in my very usual pedantic,

26

detailed way, explaining where those moneys came from.

27

Some of those moneys, about $7000 were rent that I

28

received from 12 Lisa Court, because at that stage

29

Ms Cressy Senior was actually paying her rent at it's

30

agreed half market value, and even $40 extra a week

31

because she was in about a two year bona fide domestic

This is

He can give independent evidence of the flow on

1.SB:ASC 08/12/08 2Cressy

FTR:1

239

Anyway, in the folder

There is a There's a

I had

DISCUSSION

1

relationship and some of those payments were actually

2

paid by her partner by direct debt into my bank account.

3

So I believe I have demonstrated funding.

4

was half a million dollars.

5

Mr Ioannou organised the borrowing for me.

6

pay the stamp duty of the half million which in my

7

younger years I could calculate on the top of my head.

8

think it was $26,164, I believe, on half a million

9

dollars.

The purchase

90 per cent borrowing. I also had to

I

I was in a bit of stress because it looked at

10

one stage I had to pay the mortgage insurance which would

11

have exhausted my funding because I wasn't going to get

12

the positive cash inflow from the Caulfield settlement in

13

time of rit but Mr Ioannou was able to negotiate for that

14

to be calculated into the loan.

15

that that purchase settled in mid-May, 14, 15 May 2006.

16

But the parcel had amazing redevelopment potential, two,

17

three, four two storey townhouses, maybe a garden

18

rooftop.

19

planning, but you could easily split it into two or

20

three, it was a multi-million dollar development, you

21

could easily put underground parking to each of them.

22

There were bay views from the rear kitchen window and -

23

not that I ever would do this but it was very popular

24

with the kite boarders because it's a very shallow beach

25

and when I was at the house if I'm visiting during the

26

day time you would see the kites from the kite boarders

27

zip along through the kitchen window.

28

Queen Street runs parallel to the beach, there's the

29

houses.

30

off from a corner, Romawi Street.

31

other side.

What happened then was

Tricky to get through council and VCAT from

The reason is that

This one was one quarter off from - one block

1.SB:ASC 08/12/08 2Cressy

The Esplanade runs the

So over the back fence was an esplanade FTR:1

240

DISCUSSION

1

property, multi million dollar property.

These ones, at

2

half a million dollars it was a total steal as - as

3

subsequently demonstrated.

4

develop it, but then my intention even as late as

5

November last year would be to develop it in such a way

6

that one of those units could have been made available

7

long term, not because of any legal obligation that I

8

have or - or - as generosity nine times exceeding, ten

9

times exceeding my legal obligation of $400 a month in

My intention was always to

10

child support for my daughter Illyana.

And all this was

11

predicated on creating a stable single mother home

12

environment for my daughter.

13

time parent.

14

no matter what the disparity between the - - -

I can't be a single full

The family laws system just won't allow it,

15Now, let's just stick to the relevant issues here?---Thank you, 16

Your Honour.

OK.

Story of Altona.

OK.

15 May it

17

settled, Ms Cressy and the three children.

18

move about a month later.

19

been demolished.

20

habitation, let alone human habitation.

21

of work.

22

would let her in there, live there rent free, et cetera,

23

et cetera.

24

was also on my payroll.

25

for me and ever did for me while she was on my payroll

26

was property related.

27

disposition.

28

office disposition.

29

not - she doesn't get along well with people in an office

30

environment.

31

Bourke Street but the politics were just unbearable with

I helped them

The house was - should have

It wasn't fit for - for animal It needed a lot

Ms Cressy was - it was part of the deal that I

1.SB:ASC 08/12/08 2Cressy

She - she said she'd undertake the work.

She

The only work that she had done

She has not the training or the

She can do many things but she has no She has no computer skills.

She's

I did have her come in once or twice into

FTR:1

241

DISCUSSION

1

- with my other staff.

2Well, she says she did some work for you as an office 3

administrator?---No, Your Honour.

No, Your Honour.

4

Basically this was part of the Donald Trump apprentice

5

with the junior learning about property.

6

things I did, because she was on my payroll, for one, or

7

for a while there, two days a week.

8

some work to do to justify it.

9

gave her an authority to deal with the agent who managed

One of the

I had to give her

One was I put her - I

10

the Hawkhurst property during the period where I had a

11

trouble tenant.

12

but it's questions of relevance and detail, and we're

13

skipping down under two per cent relevance there, Your

14

Honour.

15

my cash, I’m going to the bank every Monday drawing out

16

$9000, and I had done that for a number of years.

17

didn't have time to write letters and - and set up direct

18

debits and that.

19

operating without human control.

I hope I remember to come back to that,

With Altona it was the same old story.

20That's irrelevant.

All of

I

And I don't like the idea of banks

You drew out $9000, what did you do with

21

it?---Yes, every Monday, every Monday I'd withdraw $9000

22

out of my ANZ bank accounts.

23Yes?---And I would deposit with AMP to cover mortgages.

I

24

would deposit in my wife's bank account.

I would give

25

some cash to Ms Cressy, 400 or 500 or 600 a week to cover

26

living expenses.

27

need was quite intense.

28

being the $13,000 or so from the borrowings, from the

29

purchase of Gibson Street, and I had the $7000 in rent

30

money pre-settlement.

31

cushion.

At that particular time, the cash flow I had the extra source of income

So I had - I had about a 20 grand

Most of that money went to Ms Cressy to give

1.SB:ASC 08/12/08 2Cressy

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242

DISCUSSION

1

her the cash to do things like get the - the boards,

2

floorboards polished up at Altona, electrical.

3

a kitchen which, forgive me, but that cost more like

4

about $10,000 or $12,000.

There was

5Who paid for the kitchen then?---Well, my cash handed to 6

Ms Cressy.

I haven't got time to organise it.

7

to live there.

8

employee on the payroll.

9

doing for me.

She has to organise it.

She wants

She's my

That's the only work she's

So she paid it.

She paid it.

But where

10

did the funds come from?

It was all mine, Your Honour.

11

I think in her evidence that came through that she was

12

studying at that time, as indeed I agree she was, to the

13

best of my knowledge and belief.

14

watching Ms Cressy 24 hours a day or even 12 hours a day.

Now, I certainly wasn't

15Her evidence was that she paid $30,000 of her own money to 16

Prestige Kitchens to purchase the kitchen.

What do you

17

say about that?---The kitchen cost not even half that.

18Yes?---She had no source of money. 19And you say that was the monies that came from you?---Of 20

course, Your Honour.

21All right?---She - and I - she had no source of monies for it. 22She also says she got a plumber out to install a dishwasher and 23

the electric lights removed, and she paid the electrician

24

from her own funds?---The - the - the dishwasher was a

25

dishwasher that came from Dorrington Street, Point Cook.

26

It just needed to be plugged in, so it needed a $60

27

electrical power point basically.

28

because when we moved in, there was no hot water service.

The plumbing, yes,

29Who paid for the plumber?---Again it's all my money, Your 30

Honour, so the cash comes from me to Ms Cressy.

31

Ms Cressy did the running around, did the legwork, yes,

1.SB:ASC 08/12/08 2Cressy

FTR:1

243

DISCUSSION

1

but (a) because she was going to move in there on a rent

2

free basis, and (b) she was my employee.

3

money and putting aside monies and superannuation for

4

her, and she was not doing any other work for me.

I'm paying her

5That's because she said that she physically ripped out the 6

carpets, pulled out timber which overlaid the

7

floorboards, and arranged for the floorboards to be

8

sanded?---I - I - I gave her a hand with pulling out all

9

that carpet.

10Sorry?---I - I gave her a hand with pulling out all the carpet, 11

Your Honour.

It was an elderly couple who lived there

12

and their, you know, they were post - past retirement

13

age, and the mother-in-law was living with them,

14

well - - -

15That's not very relevant.

You helped Ms Cressy pull out all

16

the carpet?---Yes, Your Honour, yes.

17

them because they'd obviously lived a few years without a

18

hot water service.

19Let's just stay relevant.

I felt sorry for

I didn't know how they did it. The issue is what work you and

20

Ms Cressy did.

She said she did all of that work,

21

pulling out the carpets, that she also purchased and

22

installed new curtains?---There were no - there were just

23

tatty old pull down blinds that the vendor left, Your

24

Honour.

25Yes, so what happened?---She - she certainly cleaned - sugar 26

soaped the walls.

27Yes?---I wouldn't have time to do that and it wouldn’t make 28

economic sense, and she painted the walls as well, and

29

that was a big job because there were decades of frying

30

pan smoke and tobacco smoke stains.

31

living in horrible circumstances for I don't know how

1.SB:ASC 08/12/08 2Cressy

FTR:1

244

The vendors were

DISCUSSION

1

long.

2Let's just stick to the point.

You say Ms Cressy did clean the

3

walls and the ceilings?---Yes, Your Honour.

But I say

4

not - well, this is a submission point I guess, but not

5

by way of contributions to the value.

6No I understand that?---But as a resident - as an employee. 7Yes, well that's for me to assess under section 285, but she 8

also painted?---Yes, Your Honour.

9She said:

"I removed all the old curtains, installed new

10

curtains and curtain rails," that she purchased the new

11

curtains and curtain rails?---I don't know if she did

12

that, I don't think she did because they were basically

13

just old pull down blinds.

14Were they replaced?---They were totally removed by the mortgage 15

as part of the sale process.

The property was sold at

16

auction on 8 November this year by the mortgagee and

17

there were no blinds or curtains or anything left, they

18

were just bare windows Your Honour.

19Yes, but had Ms Cressy removed the old ones and put in new 20

ones?---My recollection is that she did not remove the

21

old ones Your Honour.

22I think I have covered all the matters that have been referred 23

to there?---The bathroom/toilet/laundry was a shocking

24

configuration, there was no baht.

25

which was dangerous, rusted and dangerous to give the

26

children tetanus if they cut their feet.

27

getting that fixed for her.

28

commercial, residential tenancy lease I couldn't have

29

leased the property, it would have been illegal as an

30

owner to do it, but I didn't have the moneys to do that

31

so to this day it's still got that ratty bathroom, toilet

1.SB:ASC 08/12/08 2Cressy

FTR:1

245

Horrible old shower

We talked about

If this had been a normal,

DISCUSSION

1

and laundry, hand basin configuration.

2

arrangements.

3

middle of this year with her three children.

4

Ms Cressy Senior, and her two infant half sisters moved

5

into that property in October 2007 after me at my wits

6

end and against my wishes having to get them evicted

7

because Ms Cressy refused to pay her rent.

8

been only half market rent anyway and I simply couldn’t

9

afford with my cash flow problems to allow her to live

10

Living

Ms Cressy lived at Altona up until the Her mother,

She'd always

for free.

11So they moved out of Lisa Court in October and went to Altona? 12

---Yes, that's right, that's right.

The eviction - the

13

judgment was handed down in VCAT on 1 October and to this

14

day Ms Cressy Senior owes me, I think, $2800 by a

15

judgment registered in VCAT and the State Magistrates

16

Court.

17

wouldn't because the only - - -

But of course I've never enforced it and I

18That's irrelevant, let's keep going?---Thank you Your Honour. 19

So from June 2006 through until October 2007 Ms Cressy

20

and the three children were the sole residents of the

21

property.

22

someone was in the house they would let me in.

23

someone wasn't there I could let myself in because the

24

door simply wasn't lockable from the outside.

25

way of locking it was to push a bolt across inside the

26

door.

I was a visitor.

Visiting was easy because if If

The only

27How often did you visit there?---Look, it would depend - it 28

would depend because I'm working - I would leave home of

29

a morning in Bourke Street and I would either drive to

30

South Melbourne or I would drive down to Geelong.

31

would often call in - on a Geelong day I would come back

1.SB:ASC 08/12/08 2Cressy

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246

Now, I

DISCUSSION

1

and visit the kids.

Very little cooking was ever done in

2

that house, most of the food was takeaway.

3

than not I would call in, I would visit and we would

4

drive - although I would rather walk, the 600 metres down

5

Queen Street to the main restaurant precinct, Piers

6

Street, Altona.

7

have a lot of friends within the cafes in that street,

8

friendships and acquaintanceships that I have built up

9

over that time and through the activities with the

More often

Irrelevant but because of those visits I

10

lifesaving club as well.

11

takeaway.

12

did.

So most of the meals were

Of course who paid for those?

Of course I

13Well, on average how often were you there from the time of the 14

purchase of Queen Street until say April 2007, once,

15

twice a week, every day or what?---One, possibly two

16

nights a week Your Honour.

17Did you stay overnight those nights?---Your Honour, I shall not 18

lie, I might stay over perhaps two nights a fortnight.

19

It tended to be on a weekend if I might be spending time

20

and certainly did take Ms Cressy and the children out on

21

excursions to the zoo, Werribee Zoo, Melbourne Zoo, to

22

the beach.

23

sisters, who were about the same age as her own children,

24

take them down to the beach for the day in summer, that

25

sort of thing.

26

hours and I sleep very short hours.

27

constant sleep deficit as indeed I have all of - since

28

this trial commenced.

29

the kids in bed and I would just fall asleep.

30

habit of nodding off before the children because the

31

moment I go still my body takes over and puts me into

1.SB:ASC 08/12/08 2Cressy

I would drive them plus Ms Cressy's two half

Now, sometimes because I'm working long

FTR:1

I would have this

Some times I would be reading to

247

I had this

DISCUSSION

1

sleep mode.

So I would often fall asleep until three in

2

the morning or even sleep over.

3

It would be in bed beside or on top of the bed, the

4

blankets besides one of the kids, either Illyana or Skye

5

depending on who I read to last.

6

couch.

7

Ms Cressy's bed.

8

occasions when sleeping in Ms Cressy's bed we would have

9

sexual activity.

Now where might I sleep?

I might doze off on the

There were occasions that I did sleep in They were not frequent.

There were

They were even less frequent Your

10

Honour.

During the period that Ms Cressy was living in

11

Altona I was in a relationship with another lady,

12

Elizabeth Leesy and I've always regarded myself as being

13

a serial monogamist.

14

becoming or joyful or pleasurable in multiple sex

15

partners.

16

that's my personal view.

17

hard work and silly.

18

living in Altona.

19

living in Bourke Street.

20

Honour.

21

full life with my business.

22

which was really a full time job, each of which I drove

23

to their premises to do the work and I mean that's borne

24

out in the financial statements, the tax invoices and

25

retainer letters that I handed up as an exhibit on Friday

26

and also in the bank records that debited payments into

27

my accounts and also in my tax returns which are all part

28

of the financing documents for each of the properties

29

which were part of Friday's exhibits.

30

wife who I had not lived with for, well as of today, a

31

decade, more than a decade, up in the Dandenongs with

I don't think there's anything

I don't impose my views on other people but It strikes me as just too much

I've described the Cressy family

Let me describe my life a little more I just realised the time Your

I really must move.

1.SB:ASC 08/12/08 2Cressy

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248

Basically I, I had a very My two big clients, each of

I had an estranged

DISCUSSION

1

three beautiful children who I spent time with

2

religiously every fortnight.

3

routine if it has more than 1 per cent relevance.

4

would pick them up from the Harold Holt Pool, their mum

5

would drive them that far.

The kids would go for a swim

6

after school on the Friday.

All year round they became

7

really good swimmers as a result.

8

with me, we'd go into the city.

9

reasons I moved from a two story, two bedroom apartment

10

to the three bedroom apartment was it was too cramped.

11

In the three story I'd pitch little two man dome tents so

12

they'd be camping on the 23rd floor of a sub-penthouse

13

with total bay views, the gas (indistinct) from the

14

casino would light up - - -

If I may describe that I

I would then take them My partner - one of the

15Don't give me that amount of detail but what you're putting to 16

me is that every fortnight you had what in old fashioned

17

terms would be referred to as access to your - the

18

children of your marriage is that right?---Yes and I'm

19

grateful for you - - -

20You'd pick them up on a Friday afternoon?---Yes. 21And how long would you have them for?---All of the weekend 22

until Sunday afternoon.

23Where would they stay? 24

You say at the apartment of Bourke

Street?---The apartment at Bourke Street, yes.

25Right well that's probably all we need on that?---Thank you 26

Your Honour.

I did on occasion because it was good to

27

have my three children and Ms Cressy's three children

28

together, I would try to do this and perhaps it would

29

work once a month, have them all together at the same

30

time.

31

kids, and they would get along really well because my, my

So it's me, Mr Brady if you like with the six

1.SB:ASC 08/12/08 2Cressy

FTR:1

249

DISCUSSION

1

two boys - the ages just mesh in Your Honour nicely.

2

two boys are very quiet.

3

bundles of energy so they, they kind of drew benefits

4

from each other's perspectives.

My

Ms Cressy's two boys are just

5You had all six children in your Bourke Street apartment? 6

---Yes Your Honour.

Hence the three bedrooms.

Now if I

7

may explain the living arrangements.

8

me and he did visit me at both apartments, but probably

9

only once so I'm not surprised he's got no recollection.

Mr Ioannou did meet

10

The three bedrooms, two of them were set up as studies,

11

offices.

12

bedroom, I didn't have a desk.

13

table.

That was the one that had the nice sweeping

14

views.

I could look down Kings Way and see Primelife, I

15

could see the Albert Park race track et cetera, et

16

cetera.

17

station as it was being built.

18

look down into - - -

They look totally commercial.

The third

I had a leftover kitchen

I watched the roof go on the Southern Cross It was amazing.

I could

19I don't think that your panoramic views are relevant?---Thank 20

you Your Honour.

I, I, I love my home and I can't wait

21

to move back to the building when I can afford it.

22Well good luck to you but let's just keep - - - ?---What I 23

would do is during working hours, daylight hours - - -

24You had the apartment with three bedrooms is that right? 25

---Yes.

26Two were set up as studies?---Yes. 27What was the third one set up as?---A study effectively. 28So all three were set up as studies?---Yes, yes. 29Any bed in any of those bedrooms?---Beds are a waste of space 30

because - - -

31The answer's no?---No. 1.SB:ASC 08/12/08 2Cressy

FTR:1

250

DISCUSSION

1So what did you have there to sleep on?

I think Mr Ioannou's

2

quote was that it was a futon couch, is that right?

3

---Your Honour I have a number of couches and they, they

4

fold out Japanese style.

5

it out.

6

that I used, I had a full ensuite and a beautiful big

7

walk in robe where I kept all my clothes.

If you need to sleep, you fold

You bring the bedding out.

My front bedrooms

8Yes?---And the ensuite was purely from my use. 9

So the

apartment would change character according to the

10

functional need that I had and I had them at 909 as well

11

and basically what I would do is I would - if you close

12

the three bedroom doors which are office space - I don't

13

think that's in dispute and basically you've got this

14

magnificent one bedroom studio apartment with two

15

bathrooms, two toilets, the laundry.

16

projector television.

17

Honour and watch TV on a grand scale.

18

large.

19

give a double size bed and a one and a half size bed.

20

The kids were quite comfy bivouacking in sleeping bags, I

21

had a fleet of eight sleeping bags and you would just

22

roll them out and they'd be happy.

23

tents and they'd be like camping in a sub-penthouse 23

24

floors up.

25

the consoles on a grand scale on the big projector

26

television, they absolutely loved it.

27

Jessica, my son Dylan, Illyana all learnt to swim in the

28

pool at my apartment, which was an amazing effort because

29

of the depth, it was only four foot deep, 25 metre lap

30

pool but they couldn’t touch the bottom with it so that

31

is a gauge of how frequently they would visit me.

I had my big

You could sit in the bath Your It was incredibly

The, the couches would fold out and that would

1.SB:ASC 08/12/08 2Cressy

I'd set up my dome

They could play their Playstation games on

FTR:1

251

My daughter

That

DISCUSSION

1

they actually learnt to swim in that pool.

Family

2

memberships at the Aquarium, we could go to the Aquarium

3

365 days a year.

4

there.

5

my family membership look at bit funny.

6

added my wife as another adult for free and I like

7

getting my money's worth when I do spend.

8

added Ms Cressy on, so we had a family membership for the

9

Aquarium, the zoo, the Rialto level 55 observatory.

I included Illyana, Skye and Treece in

Now, that made four Johnsons and three Cressys on I could have

I didn't, I

10So she was a member of your membership of the Aquarium, the 11

zoo?---Yes.

12And - - - ?---Werribee Zoo, Melbourne Zoo, Rialto level 55 13

observation deck, Melbourne Museum, National Gallery of

14

Victoria.

15All those matters Ms Cressy was a member of with you?---Yes, 16

Your Honour, because it cost me nothing to give her that

17

benefit.

18

I believe under the authorities Your Honour is allowed to

19

in terms of a holding out, I say that there was no

20

holding out in doing that, I just say it made economic

21

sense.

22

little bit.

23

to demonstrate this relationship arrangement with the

24

children, which we were still continuing on a voluntary

25

basis, Ms Cressy and I at that stage, I spent the

26

weekend, the Friday night, Saturday and the Sunday

27

morning with my three children David, Dylan and Jess.

28

then took them back early to Harold Holt pool, delivered

29

them up to their mum.

30

collected Illyana, Treece and Skye Cressy.

31

we used our annual membership tickets to full advantage

I ask that no negative inferences be drawn but

Thank you, Your Honour.

1.SB:ASC 08/12/08 2Cressy

If I may just skip a

On Father's Day last year, 2 September 2007,

FTR:1

I

I then drove out to Altona where I

252

Now, that day

DISCUSSION

1

or that afternoon, Father's Day, 2 September 2007.

We go

2

into the apartment, park the car in the basement, we then

3

walk the block and a half down to the Aquarium.

4

have to pay anything to go in.

5

the exhibits as we do.

6

Rialto to level 55 and we had afternoon tea.

7

expense for that afternoon outing was just my fuel money

8

and afternoon tea, our cakes and pies and drinks up at

9

the café.

We don't

We then walked around all

We then took the lift up in the Now, my

What I would like to do to demonstrate that

10

Illyana and I were there, and because you have been

11

introduced to two Miss Cressy's, but not I believe the

12

most important - - -

13MR DEVRIES:

I have been listening very patiently, Your Honour,

14

hoping that the account would be shorter than my

15

objection.

16HIS HONOUR:

I object to the relevance Your Honour.

Yes, I don't know why I need photographs of this.

17

You say, even after you separated from Ms Cressy, or

18

ceased your relationship with her or whatever continued

19

to take the Cressy children out?---Your Honour, I

20

struggle with the language to express myself because it's

21

a question of what do you mean by "relationship" and

22

"see, see".

23

fide resolution - - -

Now, I say that there has never been a bona

24You say there is no - your point is there is no domestic 25

relationship within the meaning of the Property Law Act?

26

---Yes, Your Honour.

27

a bona fide domestic relationship by virtue simply of

28

cohabitation, I believe on the evidence in Briggenshaw

29

standards you would be looking at perhaps the period from

30

the cohabitation at South Yarra.

If you were to find that there was

31We will come to Briggenshaw later, I don't see what Briggenshaw 1.SB:ASC 08/12/08 2Cressy

FTR:1

253

DISCUSSION

1

has got to do with that.

It's got plenty to do with what

2

you have asserted in your counter-claim but I don't see

3

how Briggenshaw can apply to a claim under part 9 of the

4

Property Law Act, but that's really for address.

5

coming back without getting lost in these arguments, I

6

don't see the relevance of you tendering a photograph of

7

your daughter with you in December 2007.

8

better stick - I see the time, you looked at it yourself,

9

I think we should stick to the issues which I have to

But

I think we had

10

decide so that you do yourself justice in meeting those

11

issues?---Your Honour, I accept what Your Honour is

12

saying, I just feeling in my heart that of the three Miss

13

Cressy's involved in this proceedings, this young lady

14

here is the most important of the three that Your Honour

15

should meet and this is my sole basis for being able to

16

do so and this is my sole means of being able to do so.

17Well, I can see from here the photograph of your daughter? 18

---And the date stamped that this portrait was taken

19

being - - -

20Right, but I don't see that as being relevant to the issues in 21

this case?---Okay.

22

talk about how I met some of the other witnesses for the

23

first time, if I may.

24

well she became the rental manager at the Bourke Street

25

apartments about a year after I moved in.

26

worked out of an office at the front, she's involved in

27

both sales and looking after the tenants and dealing with

28

vacancies and - yes, yes Your Honour, she used to drive

29

into the apartment, and she – the most often times that

30

we would meet each other would be early in the morning,

31

because I'd be working to the car park to leave home to

1.SB:ASC 08/12/08 2Cressy

FTR:1

My living arrangements - sorry, I'll

Ms Karen Briggs who gave evidence,

254

Now, she

DISCUSSION

1

drive to South Melbourne Primelife or to Geelong Barwon

2

Water, and she'd be walking in, starting her day in her

3

office in Bourke Street.

4

time we'd see each other, otherwise it'd be during the

5

lift lobby on those few occasions when I chose to, you

6

know to work from home, or to take a day off from either

7

of my two full-time jobs, and enjoyed the luxury of my

8

home on a, on a weekday.

9

official role at 909, Pub 909 to conduct regular

10

So that was the most frequent

She did visit me in her

inspections.

11She can't recall that.

She doesn't deny she did it, but she

12

couldn't recall it?---I'm not surprised, I'm not

13

surprised.

14That's not relevant?---There was, there was nothing to raise in 15

her memory anything exception about - - -

16There's not adverse inference about her not being able to 17

recall it.

She said she does so many inspections, she

18

can't remember that?---Thank you, Your Honour.

19

she found that apartment for me, 2302.

20

another one on the same time - - -

She, um

I had a look at

21She gave evidence to that effect?---Thank you, Your Honour. 22That was unchallenged?---And in her words, that was the best 23

side of the building for views, that's why she pointed me

24

in that apartment.

25

further up the Bourke Street Hill.

26

met Ms Dek-Fabrikant.

27

on the grand final weekend of 2007.

28MR DEVRIES: 29

May I explain how I

This was an incident that occurred

I object, Your Honour.

I objected when he sought

to get this evidence in through Ms Dek-Fabrikant.

30HIS HONOUR: 31

Not the one in the other corner

I think the detail of whatever incident's

irrelevant.

1.SB:ASC 08/12/08 2Cressy

The timing of the meeting is relevant. FTR:1

255

It

DISCUSSION

1

was relevant to Ms Dek-Fabrikant's evidence as to when

2

she actually first saw and became acquainted with

3

Mr Johnson.

4MR DEVRIES:

This is one of the problems that Mr Johnson faces,

5

having called these witnesses before himself.

6

concerned that he's tailoring his evidence to follow

7

their evidence, rather than having giving his evidence

8

first.

9HIS HONOUR:

I'm

But - - I follow that, but you can't object on that basis.

10

I understand what you're – I understand your point.

11

Whatever the incident was, the details of the day are

12

irrelevant, but the timing of your first meeting with

13

Ms Dek-Fabrikant is relevant?---Yes, Your Honour.

14All right?---Might we just put our - - 15You say the first time you met her was in September 2007, is 16

that right?---Yes, yes mid to late September 2007.

17HIS HONOUR:

Yes?---I'm very conscious of the sensitivity

18

around the detail of that incident on 27 September, and I

19

don't propose to discuss any of that detail at all.

20Right?---I'm also sensitive now to the fact that I'm speaking 21

after my witnesses, but I ask Your Honour to

22

consider - - -

23Just - - -?---rather than tailoring, most of my evidence 24

contradicts issues of how the other witnesses explained

25

the first meeting.

26You give your evidence as to?---Thank you, Your Honour.

The

27

children spent – it was Tuesday, sorry Thursday, Friday,

28

Saturday morning of that week with me.

29

pursuant to orders that were made in the Federal

30

Magistrates' Court under the - - -

And that was

31That doesn't matter?---Application that I brought. 1.SB:ASC 08/12/08 2Cressy

FTR:1

256

DISCUSSION

1Just keep your mind on the job?---I returned them according to 2

those orders to Ms Cressy um on about midday on the

3

Saturday 29 September 2007.

4

late at Ms Cressy's request, because she couldn't be

5

there at nine o'clock to collect them, 9 a.m.

6

incident happened when I next returned - - -

7MR DEVRIES:

I returned them three hours

An

If it speeds things up, if it assists the court,

8

I'm happy to concede that the first time that Mr Johnson

9

met this lady was on 29 September 2007.

10HIS HONOUR: 11

There you are, that's no longer - - -?---That

would be totally false, Your Honour.

12Sorry?---That would be totally false. 13What date do you say you first met her?---I met her about a 14

fortnight after this date, which is 29 September.

15MR DEVRIES:

I'm happy to concede that, Your Honour.

16HIS HONOUR:

Mr Devries concedes that, the actual fine detail

17

doesn't count.

But Mr Devries accepts that you didn't

18

meet her until mid October 2007, all right?---Yes, thank

19

you Your Honour.

20

visiting the house at Altona, and doing things in terms

21

of feeding and looking after Ms Cressy's pets while I was

22

there.

23

Fabrikant, and I've not – never introduced myself either.

24

During the first week of October, the children had in the

25

old expression, 'access time' with me.

I had seen her a couple of times

But Ms Cressy never introduced me to Ms Dek-

26Again, is this relevant?

If this is not an issue then you

27

don't need to give any evidence.

All you have to do is

28

say the first time I met Ms Dek-Fabrikant was in October

29

2007.

30

evidence in the case.

31

Your Honour, I do indeed, I do indeed.

That's not in issue, and that will be accepted as

1.SB:ASC 08/12/08 2Cressy

FTR:1

Do you follow?---Thank you,

257

I met her in mid DISCUSSION

1

October, I think about 8 or 9 October, Your Honour, while

2

she was actually in hospital.

3MR DEVRIES:

I, with - - -

Your Honour, if he's going to go into detail, I'll

4

withdraw the concession, we may as well waste the time.

5

I'll withdraw the concession.

6HIS HONOUR: 7

You say you met her in hospital?---Yes,

Your Honour.

8That's all I need?---Thank you, Your Honour. 9 10

she would be willing to give a statement to my family lawyer.

11MR DEVRIES: 12

I asked her if

I withdraw the concession, Your Honour.

It's not

achieving the end it was supposed to.

13HIS HONOUR:

No it isn't?---I'm grateful the concession's

14

withdrawn, Your Honour.

I asked her if I could pass on

15

her details, information to my family lawyer to take her

16

statement.

17

then passed on those details.

18

communication with Ms Dek-Fabrikant in connection with

19

the preparation of that statement, parts of which were

20

read out in court on Friday morning, Your Honour.

21

Directly between her and my lawyer, Your Honour.

She said, "Yes, but I'm not very well".

I

I had no more

22Right?---That's all I wanted to say there.

The only, the only

23

witness for the defence that I haven't explained my first

24

meeting with is principal Kevin Enright.

25

involved in the registration of the children at that

26

school.

27

happened at about April 2006, and the children started at

28

that school a couple of months before Ms Cressy and the

29

children moved into the Altona house.

30

them from Point Cook to the school for a couple of

31

months.

I wasn't

I believe, well, it was because you told me that

So she was driving

As I say, I wasn't involved in any of that

1.SB:ASC 08/12/08 2Cressy

FTR:1

258

DISCUSSION

1

process, and I'm sure I've explained to Your Honour the

2

reason why I wasn't involved.

3

household, Your Honour.

4

evidence my daughter's birth certificate on Friday.

5

Mr Devries expressed his keen interest in looking at that

6

because Ms Cressy claims that her evidence was stolen

7

from her house in August or September 07, and amongst the

8

evidence stolen she - as she claims was stolen, she

9

claims was one or more birth certificates.

I wasn't part of the

OK, Your Honour, I tendered in

Now, I just

10

want to draw Your Honour's attention, I did say I'd look

11

for a fax where I sent that to the school.

12

was faulty memory.

13

Mr Enright at a later meeting.

14

certificate it shows down the bottom that it was issued

15

on 22 September 2007.

16

of Births, Deaths and Marriages on a Friday in June, late

17

June, to get that certificate.

18

certificate for Skye Cressy as well, but of course

19

because they check, and to my knowledge and belief I'm

20

not on that birth certificate, the little boy was five

21

months old when I met him, I wasn't able to get that

22

certificate.

23

into evidence what I claim to be, and I think Ms Cressy

24

accepted is a photocopy of her diary of those relevant

25

dates, and if I may just draw Your Honour's attention to

26

that.

I think that

I think I just handed it to But on the birth

Now, I remember going to Registrar

I applied for a birth

But I did get one for Illyana.

Now, I put

27Is that Exhibit 3 that you put in when you were cross-examining 28

Ms Cressy, was it?---Yes, I can't say for sure the number

29

but yes, yes, it was one of the early exhibits, Your

30

Honour.

31

is no evidence to suggest that I wasn't in Australia on

The point I want to make is that I - that there

1.SB:ASC 08/12/08 2Cressy

FTR:1

259

DISCUSSION

1

22 June 2007, the date that somebody collected that birth

2

certificate.

3

was actually in China on that day that that's - - -

There is evidence to show that Ms Cressy

4What's all this got to do with the case?---It has to go to the 5

suggestion by my learned friend, if he did make such a

6

suggestion that that might have been stolen goods, that

7

certificate that I stole from Ms Cressy.

8Well, you deny that?---I deny and I also say it's very 9

insulting for one officer of this court to another to

10

suggest that of another officer of this court of 18 and a

11

half years good standing, without any - any trace of

12

evidence, because there can be no evidence because - - -

13Well, let's not worry about the protestations.

It has been, I

14

think, inferred.

Certainly Ms Cressy states that in, I

15

think it's September of 2007 the premises at Altona were

16

broken into and a number of her records were then taken.

17

I take it you say you had nothing to do with that?---I

18

believe, Your Honour, that her evidence was that it

19

happened in August.

20Yes?---Although this photo is again useful because - - 21Well, don't worry about that.

I take it your simple evidence

22

is that you had nothing to do with that?---My - my

23

evidence isn't quite simple, Your Honour, but my evidence

24

is that I'm - I'm a barrister, not a solicitor.

25

barrister or a solicitor is not a burglar, Your Honour,

26

and I would have thought that if anyone wants to make

27

accusations against their barrister or solicitor of 18

28

years good standing in Your Honour's court, they should

29

have some damn fine evidence to back up those

30

allegations.

31Just a moment.

A

1.SB:ASC 08/12/08 2Cressy

What I want to ask you is this then, while FTR:1

260

DISCUSSION

1

we're on the subject of these documents.

2

while Ms Cressy and the children were away on a school

3

holiday, did you go to her premises and remove some

4

documents?---Your Honour, I did go to the premises but I

5

did not remove any documents that were at the premises.

6

I would like to explain it, but I just want to clarify

7

this point about the 22 June 2007.

8

of that exhibit.

9It was Exhibit 9. 10

Your Honour.

11

diary.

Did you go

I don't have a copy

You can be shown a copy of it?---Thank you, No, that's not the one.

12Exhibit 3?---Thank you, Your Honour.

It's Ms Cressy's

I apologise for taking

13

Your Honour's copy.

14

references to the effect that Ms Cressy left for a trip

15

to China on 18 June 2007, four days before that birth

16

certificate was issued.

17MR DEVRIES: 18

What - what this document shows is

I object to this evidence.

How can this witness

comment on a document that he's not - - -

19HIS HONOUR:

He can't.

It's irrelevant and it's hearsay.

Now,

20

Mr Johnson, you're not helping your case addressing this

21

topic.

22

certificate and rebut an allegation or a suggestion that

23

was made.

24

Honour, but it's not what I'm just saying.

25

there's documentary evidence - - -

You simply deny that you stole a birth

Is that right?---That is what I'm saying, Your I'm saying

26Yes?---That this certificate that I purchased on Friday 22 June 27

2007 could never have been the property of Ms Cressy's

28

because she wasn't even in the country on that date to

29

purchase it.

30All right, well, I don't see the relevance of that. 31

please get your mind back on to the job.

1.SB:ASC 08/12/08 2Cressy

FTR:1

261

Would you

You've done DISCUSSION

1

reasonably well today so far with a bit of steering from

2

me.

3

address the issues?---Thank you, Your Honour.

Put that document to one side and continue to

4All right?---What I wanted to do next, Your Honour, was talk 5

about the bundles of mysteriously missing documents.

6

Now, already there's the issue in evidence, and has been

7

raised in a number of the practice court hearings about

8

my four boxes of original purchase, funding and

9

construction documents.

Ms Cressy admitted in cross-

10

examination that as at 14 March 2008 they were in her

11

possession.

May I explain how they came to be in her

12

possession?

They came to be - - -

13Sorry what documents are you talking about?---These are one of 14

the exhibits for Inverloch Drive explained - it was

15

explained to Your Honour in cross-examination that there

16

were four archive boxes, two whole shelves of such

17

records all of the original construction, finance, legal

18

contracts.

19Well no all Ms Cressy I think said was that there were a number 20

of boxes that she put onto the front nature strip or at

21

the front of the house which you collected after the

22

hearing before Justice Whelan.

23

apart.

24

---Thank you Your Honour.

25

evidence on this point.

26MR DEVRIES:

Some of the boxes fell

She said she put them into other containers? I need to give some direct

Your Honour I object.

All the issues about what

27

was in the documents - what was in the boxes, what

28

weren't in the boxes whether my client should have

29

delivered and whether she did deliver them have been

30

litigated endlessly or attempted to be litigated

31

endlessly by Mr Johnson in the various interlocutory

1.SB:ASC 08/12/08 2Cressy

FTR:1

262

DISCUSSION

1

stages of this proceeding.

2

respectful submission for Mr Johnson to be trying to

3

litigate that now and I also raise the issue that this

4

isn't at all relevant to the matter before Your Honour.

5HIS HONOUR:

It's not appropriate in my

Well that's an objection of greater substance.

6

What is the relevance of this?---Your Honour the

7

relevance is this, is that there have been a number of

8

thefts of records.

9

been perpetrated by Ms Cressy.

It's my evidence that the thefts have The records stolen are

10

mine.

My case has been substantially hindered.

I had to

11

go back to Mr Ioannou to reconstruct those parts of his

12

records that corresponded with a portion of my records so

13

that I had evidence to give Your Honour in these

14

proceedings as to my - the fact that it's my, the

15

property purchases were mine.

16

energy and the effort, in, in the incurring of legal

17

obligation by mortgage.

18

Nothing to do with Ms Cressy whatsoever.

19

issue has not been litigated.

20

simple question, did Ms Cressy have the documents?

21

Conceded.

22

was required in the other matters in the orders before

23

Mr Justice Whelan back in March last year?

24

them over or not?

The income was mine, the

All mine, mine, mine and mine. I put - the

It has always been the

The issue, did she hand them over to me as she

Did she hand

She says yes - - -

25Well what part of the case - - - ?---- - - I say no. 26What part of the case is this relevant to?

It's obviously not

27

part of the case of the plaintiff.

Is it relevant to any

28

part of your counter claim?---Your Honour it is

29

relevant - - -

30You have pleaded in your counter claim that the plaintiff took 31

possession of some contracts and records, but as I

1.SB:ASC 08/12/08 2Cressy

FTR:1

263

DISCUSSION

1

understand it your case is that those documents have been

2

lodged with the Werribee Court pursuant to a subpoena?

3

---No Your Honour.

4

mysteriously missing documents.

5

discussing the third set now Your Honour.

6

about the first set.

There, there are three sets of You're, you're I'm talking

7Yes but of the documents you're now seeking to speak about, are 8

they the documents referred to in your counter claim?

9

---The original purchase, construction, yes the documents

10

referred to by Mr Justice Whelan.

11No, in your counter claim?---Yes they are Your Honour, yes. 12

Now - - -

13Well (indistinct) evidence on it if it relates to your counter 14

claim but just bear in mind the caution that I gave you

15

on Friday relating to the issues of costs should you

16

(indistinct) into any irrelevant issue.

17

careful of that?---Your Honour Ms Cressy is weighting an

18

argument that a dingo stole her evidence in September

19

2007.

20

I'm defending myself, I've had to go to a lot of effort

21

and I'm missing a lot of documents and my ability to deal

22

with my properties, ability to sell them is impeded by me

23

needing documents - - -

So be very

Now my argument and it goes to my costs because

24That is not relevant to any of the claim or counter claim. 25

If

you - - - ?---Damages on the claim Your Honour and - - -

26Just a moment?---I'm sorry Your Honour. 27You keep saying you're an officer of the court. 28

You know

better than interrupt a judge?---Forgive me - - -

29Don't do it again.

You have a counter claim relating to the

30

wrongful seizure by the plaintiff of a number of items

31

including, 27.3 of your counter claim, your contracts and

1.SB:ASC 08/12/08 2Cressy

FTR:1

264

DISCUSSION

1

records of land purchases, construction of dwellings

2

thereon for each of your properties.

3

the evidence as to that, as to how you say what these

4

documents are and how you say the plaintiff took position

5

of them?---Thank you Your Honour.

Now you can lead

6All right?---Thank you Your Honour. 7But you will confine your evidence to that?---Thank you Your 8

Honour.

Thank you.

These are the first set of the

9

mysteriously missing documents.

They came into

10

Ms Cressy's possession - see the very substantial

11

documents, part of my archived records, I didn't need

12

them on a day to day basis.

13

the children into the house at Altona I had three garages

14

constructed at the back.

15

One to store a whole lot of art and craft equipment,

16

about $10,000 worth of leather, some very expensive and

17

unique leather working machinery.

When I moved Ms Cressy and

These were big garden sheds.

18Well we've had plenty of evidence about this but I 19

think - - - ?---But not from me Your Honour.

20

not - - -

21It's uncontested evidence.

Not,

There were three sheds?---Yes.

22But one of them was used to store your records is that right? 23

---Yes, yes.

That's - - -

24So we've got common ground there.

Now what was in the shed

25

that was used to store your records?---The first shed

26

contained leather and leather working of Ms Cressy's

27

which in her evidence she said she paid $40,000 for.

28

Your Honour these are actually materials and tools that I

29

purchased for her as part of her 2.5 year footwear and

30

leather work course at RMIT and their value was about

31

$10,000 funded out of my cash again, not the $40,000

1.SB:ASC 08/12/08 2Cressy

FTR:1

265

DISCUSSION

1

exaggerated figure Ms Cressy gave in evidence.

2

that's all I need to say Your Honour about that shed.

3

had a lot of archived records in a second shed.

4

paying a lot of money for that property, very high

5

mortgage.

6

economising on my expense

7

expensive commercial storage.

8

own personal investment records.

9

shed out at Altona.

I can't rent it out.

And I

Now I'm

I certainly - again I'm

I didn't want to pay for For archived, legal and my So I stored them in the

10Yes?---Relationships were good and they should have been 11

extremely good given my generosity in the volume of child

12

support and non-agency benefits I had been giving

13

Ms Cressy, and as indeed they were up until Easter 2007

14

and I hope Your Honour will remind me to explain where

15

this child support arrangement that we had in place came

16

unstuck in April, about a week after Easter 2007.

17

May '07 or at any later date.

18

specifically on that issue, Your Honour.

19

house at Altona, three days after this portrait was

20

drawn, up in the Rialto Café, level 55.

21

for some papers that Ms Cressy had stolen from me years

22

earlier and not to put too fine a word on it she had been

23

blackmailing me with.

24

that.

25

examination I will be very welcome, but I will skip on.

26

At that point I had organised an appointment with an

27

estate agent to come through and give me a rental

28

evaluation for the property.

29

Ms Cressy had asked me to vary our child support

30

arrangements was that she would rent the property from

31

me.

Not at

So I need to come back I went to the

I went to look

That's all I want to say about

If Mr Devries wants to raise it in cross-

One of the things that

I told her I would think about it.

1.SB:ASC 08/12/08 2Cressy

FTR:1

266

I used that DISCUSSION

1

opportunity to organise for an agent to come and give me

2

a curb side and told me that it's worth about $320 a week

3

in rental.

4MR DEVRIES:

That's hearsay Your Honour.

5HIS HONOUR:

I don't know what the relevance of all this is.

6

thought we were focussing on this shed that had your

7

archived records in?---I will come back to that very

8

quickly, Your Honour, in terms of motive for this

9

hypothetical stealing of evidence.

10

I

I gained access to

the property by - - -

11When is this?---This was Sunday 2 September. 122000 and - - - ?---2007. 13Right?---So it was probably yes, 5 September. 14

Either the

Wednesday or Thursday - - -

15So you went to the property on 5 September 2007?---Yes, yes, 16

there was no one home.

I gained access by climbing over

17

the side fence, walking around, walking in through the

18

back door.

19

locked from the outside.

20

rectified, Ms Cressy did put locks on the doors, so it

21

could be locked from outside.

22

given her $200 on each occasion.

23

back to June 2006 to put locks on the doors at the front

24

door for security and to stop the children running out of

25

the house at night when they were angry, it's quite a

26

busy road, Queen Street, Altona.

27

roads in the region.

I've explained how the front door was never In about May of '07 that was

Twice previously I had This is going right

It's one of the main

28Could you please keep your mind on the job?---Thank you, Your 29

Honour.

So I walk in through the back door, I have a

30

look around at the house which was in its typical shabby

31

condition.

1.SB:ASC 08/12/08 2Cressy

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267

DISCUSSION

1So how did you get in the back door?---You just open the door 2

and you walk through.

3It was unlocked?---Yes, of course Your Honour. 4So the back door you opened?---Yes. 5Went in?---Yes, had a look around.

I went looking for my

6

papers that I believed were in Ms Cressy's possession

7

that had been mysteriously missing since about 2003.

8

More than happy to deal in cross-examination if

9

Mr Devries wants to raise it.

While I'm waiting for the

10

agent to come I had a look through Ms Cressy's bedroom.

11

I saw her two diaries under the bed, I saw no other

12

diaries.

13

things, recent mail tucked inside the pages of one of

14

them.

15

years.

16

evidence of the kind that you would want to bring if you

17

were making a Part 9 application such as Ms Cressy has.

18

That doesn't surprise me because caveats had been lodged

19

in May of '07 and you would think that any hard evidence

20

would have been in the very safe hands of the

21

lawyer - - -

There were some bank statements and little

There were no other diaries from any previous There wasn't much in the way of what I would call

22This is all argumentative, stick to your evidence, all right? 23

---Your Honour.

24

references to her boyfriend, Mark, and his 50th birthday

25

in April.

26

which I had already been told about.

27

was about a week's pages missing out of the personal

28

diary, been ripped out and there is evidence of that in

29

that Exhibit 3 Your Honour.

30

which happens to be my birthday, is missing and entries

31

for that date are kind of written in longhand across the

1.SB:ASC 08/12/08 2Cressy

I perused the diary, I saw the

I saw references to the Shanghai holiday trip

FTR:1

268

I saw that there

The week including 12 June,

DISCUSSION

1

top of the pages, and I'm thinking this is evidence that

2

is material in this case, will Ms Cressy voluntarily

3

disclose it - - -

4What you were thinking is irrelevant, you just describe what 5

you saw?---Thank you, Your Honour, I photocopied those

6

pages, most of those pages have got entries in them.

7So you photocopied her diary?---Yes. 8Where did you do that photocopying?---I walked around into the 9 10

front bedroom which had a desk of which ownership was mind, there was a printer.

11There was a photocopier there was there?---Yes, a printer with 12

a photocopier.

13That's the short answer?---Also my asset, and I photocopied 14

them using paper that I probably paid for Your Honour.

15Yes?---I then put the diaries back.

The agent came, did the

16

walk through inspection.

17

that included telephoning Ms Cressy's children who were

18

on their way back from the Mt Bulla ski trip that

19

afternoon.

20

gone out to the shed and got my boxes and boxes of

21

documents, the original purchase construction documents.

So I left.

I had evening appointments and

If I had had time I would have

22Just pausing there, what did you take away with you then? 23

---Only the photocopies of the diaries.

The originals I

24

put back thinking well, if they're destroyed - - -

25It doesn't matter what you were thinking, you took the 26

photocopies?---Thank you, Your Honour.

27

saved myself a lot of time and stress and expense having

28

to bother Mr Ioannou with, et cetera, if I had had time

29

that day to simply take my records of which the Inverloch

30

Drive one is the only one actually I was given late on -

31

sorry, in March 2008.

1.SB:ASC 08/12/08 2Cressy

FTR:1

Now, I could have

So there's an issue that's been 269

DISCUSSION

1

left open in all of the Practice Court trials that we've

2

had, deliberately using funny words, Your Honour, whether

3

Ms Cressy did hand over all that folder plus the 30 or 40

4

other folders of that ilk or she did not.

5

have consistently been she did not.

6

that I had opportunity to take them and I didn't on that

7

5 or 6 September '07.

8

examination that in March - - -

My suggestion is

Ms Cressy admitted under cross-

9Don't worry if she admitted it.

You're just giving evidence at

10

the moment?---Thank you, Your Honour.

11

blurring the submission territory.

12Yes?---I understand.

My allegations

Yes, I realise I'm

I appreciate that much, Your Honour.

13Just stick to your evidence?---Thank you, Your Honour. 14

I had

no motive to remove - sorry, I'm submitting it, aren't I?

15You are indeed?---Perhaps I've said enough, Your Honour. 16You may have.

Tell me, in relation to the shed, what documents

17

do you say were in the shed which were not returned to

18

you when you went to receive them pursuant to other

19

matters part of Justice Whelan's order?---Thank you, Your

20

Honour.

21

that day, which will be clearly stated in - in the

22

transcripts said, were those irrelevant documents that

23

are just the four or five years worth of contracts and

24

documents whereby Ms Cressy (indistinct) properties.

The very documents that Ms Cressy's counsel on

25Well, do you say you had in that shed - - -?---Yes, Your 26

Honour.

27Documents - you're jumping out a bit quick there.

Documents

28

relating to the purchase of the various properties?

29

---Only construction of the houses where I put houses on

30

them.

Yes, Your Honour.

And the refinancing.

31What were they contained in, in that shed?---Folders just like 1.SB:ASC 08/12/08 2Cressy

FTR:1

270

DISCUSSION

1

this one.

2That blue folder?---The blue folder. 3That's Exhibit 1?---But - but different colours. 4

were different colours.

5

pink and green.

Most of them

The Dorrington ones I think were

6Yes?---Hawkhurst might have been blue as well actually, and 7

Lisa Court.

They were twins, non-conjoined twins.

This

8

one was given to me.

9

Water work, recycled water projects, water reclamation,

I had a lot of archived Melbourne

10

sewerage farm type contracts (indistinct) really old

11

fashioned language. This one was handed to me in a bundle

12

of those, and it is my submission that Ms Cressy went

13

through these with a fine tooth comb, took out all of the

14

ones that I really wanted, the ones that her counsel

15

described to Mr Justice Whelan in March 2008.

16

time period she gave me that one thinking that it was

17

one - - -

18You're pointing out one.

But in the

Is that the blue folder which is

19

Exhibit 1 relating to, I think, Inverloch Drive?

20

---Inverloch Drive.

21

evidence in chief about that purchase.

22

Yes I did, Your Honour.

And I don't think I've given No, yes I did.

I did.

23Yes, you said you spotted it over the back fence?---Yes, 24

115,000, bought within a week of it going up, and it

25

settled 30 days later, Your Honour.

26

the remaining 30 or 40 folders that - plus that one that

27

I refer to as the - the mysteriously missing documents.

28

The mystery clearing up, we know at least that that was

29

still sitting in that shed as at mid March 2008.

30

Ms Cressy admitted that under cross-examination.

31

Ms Cressy claims that a whole lot of documents were

1.SB:ASC 08/12/08 2Cressy

FTR:1

271

OK, so it's - it's

DISCUSSION

1

stolen from her.

She said in August 07, but to make any

2

sense of the - of the tale, it must have been in the week

3

after this photo was taken, after 2 September 2007.

4

say yes, I was at the property.

5

diaries.

6

I did not take any of Ms Cressy's documents.

7

include when I say Ms Cressy's documents, obviously I'm

8

saying rightly or wrongly that the photocopies I took

9

were not Ms Cressy's documents.

I

Yes, I did photocopy her

I did - yes, I did replace the originals.

10Right?---I'll just close at that logical loop.

No,

I don't

Then there is a

11

third bundle of mysteriously missing documents.

These

12

are the ones that Ms Cressy came to my house at

13

Dorrington Street.

14

apartment because the owner was selling it and I had to

15

move out.

16

Now, at this stage I was a man who owned six properties

17

with seven mortgages, and I was homeless.

18

surfed.

I lived on my friends' couches for about six

19

weeks.

In order to spend time with the children under

20

the family law orders, which included Illyana on a Monday

21

night, pick her up from school on the Monday afternoon,

22

take her back to school Tuesday morning, and ditto one on

23

Thursday afternoon.

24

come with me also if they expressed the wish.

25

renting a Quest apartment in Williamstown, horribly

26

expensive.

27

somewhere, even at that expense, to - to comply with the

28

court orders that I'm allowed to spend the time that I

29

and the children are expected to have together.

30

period of homelessness stopped when I entered into the

31

lease arrangement for Torquay.

I had moved out of the Bourke Street

So I moved out of there in early August 2007.

1.SB:ASC 08/12/08 2Cressy

I couch

Arrangements for Skye and Treece to I was

But being homeless, I needed to have

FTR:1

272

That

So, for six weeks during DISCUSSION

1

winter 07, me with six properties, I own seven mortgages

2

on them, I was homeless.

3

so it ended two ways, and I became dual residents.

4

Torquay from mid September.

5

had at Dorrington Street.

6

lease with 18 or so months to go.

7

break and to move out early, and as part of that process

8

I actually physically moved them, which was - that - that

9

was quite a task.

That homelessness ended with -

I persuaded the tenants I They were under a two year I persuaded them to

So I had 2 Dorrington Street to live

10

in.

I thought I was giving a good family configuration

11

here.

12

for permanent orders that the three Cressy children live

13

at the Altona house which I would fund ad infinitum.

14

Ms Cressy would live there one week, I wouldn't live

15

there the other week.

16

not seeking to dispossess her of that property.

17

not seeking to dispossess the children.

18

children to grow up in that house in that neighbourhood

19

with that school.

I was applying my application in the family court

That's what I was seeking.

I was I was

I wanted the

20We're not really getting into family court issues?---We're 21

describing living arrangements.

22MR DEVRIES: 23

It may be marginally relevant to Your Honour's

findings about the nature of the relationship.

24HIS HONOUR:

Yes, all right, well, then you proceed.

Thank

25

you, Mr Devries?---Indeed, thank you Mr Devries.

26

the interim I applied for a - - -

And in

27Sorry?---Sorry, I thought my back complaint had perhaps 28

afflicted me.

I'm sorry, Your Honour.

29No, it will predate yours. 30

Keep going?---I - I have a medicine

cabinet here.

31Let's not worry. 1.SB:ASC 08/12/08 2Cressy

Let's not compare backs?---Temporary orders FTR:1

273

DISCUSSION

1

which I thought would only apply up until the 19 Dec

2

hearing that Ms Cressy live in the house with the three

3

children.

4

counsel, that I consented to an order that she and the

5

children live in the house.

6

for it.

7

quite prepared to hand up a copy of that application if

8

it would assist Your Honour.

There's been discussion, submission by

I sought it.

I didn't consent.

I applied

It's in, it's in my initial – I'm

9I don't see the relevance of it, but it's a matter for you? 10

---Then rather than risk um Federal Magistrate O'Dwyer's

11

ire, I won't hand it up Your Honour.

12MR DEVRIES: 13

asking some questions about the application.

14HIS HONOUR: 15

If you wish to?---If I can now find it

Your Honour.

16MR DEVRIES: 17

I'm quite happy for it to hand up, because I'll be

I've got multiple copies if it would assist

Your Honour.

18HIS HONOUR:

Yes.

You wish to tender this document, do you?

19

---Yes, Your Honour, and I wish to say this is consistent

20

with maintaining - - -

21What is this, an application by you to - - -?---In the Federal 22

Magistrates' Court.

23To Federal Magistrates' Court?---Regarding, I believe it's 24

called, "Live with and time with issues for the three

25

Cressy children".

26All right?---The terminology I had for the first time a few 27

days ago in this court, Your Honour.

28Yes?---Access and residency I would have called it, 29

Your Honour.

30The times are changing. 31 32#EXHIBIT 19 Copy of the application by the defendant 1.SB:ASC 08/12/08 2Cressy

FTR:1

274

DISCUSSION

1 2

to the Federal Magistrates' Court of Australia dated 13/09/07.

3WITNESS:

Yes.

The last thing I want to say in evidence on

4

chief on this, Your Honour, is that I was seeking through

5

that jurisdiction to give some legal recognition to what

6

had previously been a voluntary arrangement, for live

7

with and time with, access and residency between

8

Ms Cressy and myself.

9

who I believe is my child, though I'm asking for DNA

Primarily in respect of my child,

10

confirmation, but of course supporting her half brothers,

11

because you can't support just a fraction of a family

12

Your Honour.

13

third bundle of mysteriously missing documents.

14

these are the ones that um – I collected Illyana from

15

school on Thursday 15 November 2007.

16

the afternoon with her in her class as a parent helping

17

with the swimming lesson for that day.

18

swimming lesson, Illyana and I came into the city, where

19

she and I – she came into one of my meetings with, with a

20

former client and his wife, just a five o'clock cup of

21

coffee.

22

day.

23

Illyana wanted to ride the water slide, and she's below

24

the height restriction.

Moving right along Your Honour, are the Well

I'd actually spent

After that

I had to compress as much as I could into the

We then went to the Melbourne Aquatic Centre, where

25Do you think you could try to keep relevant?---And Your Honour, 26

rather than driving down to Torquay that night to sleep,

27

we stopped off at Point Cook.

28

water slide with her, me having worked without sleep the

29

night before, I was exhausted.

30

pulled out one of the beds for her to sleep on, one of

31

the couches.

32

out my bed, I'd simply fallen asleep.

1.SB:ASC 08/12/08 2Cressy

Now me having ridden the

I fell asleep.

I'd

I hadn't gone into the other room to pull

FTR:1

275

I hadn't locked up DISCUSSION

1

the house.

I had my little puppy who I was toilet

2

training, so I had the back door open for her.

3

right o'clock I fell asleep.

4

switched on expecting phone calls, charging on the

5

kitchen bench.

6

phone.

7

quarter to five the following morning, that being the

8

Friday morning.

9

two phones are missing from the bench.

About

I had my two mobile phones

One was a work phone, one was a personal

That's all I remember until waking um at about

I wake up, I walk into the kitchen.

My

My first thoughts

10

were my puppy, she was lying asleep beside the bed.

11

then have a little walk around the house.

12

are unlocked, there are lights on funny.

13

boxes, like a bookcase Your Honour, and I put the lever

14

arch folders in, and they're all labelled.

15

things like tax returns, credit cards, AMP, things like

16

that.

17

the house, they just upended the box and carried it out.

18

Four or five boxes of my records.

19

of my notebook computers looking at, at accessing that.

20

They didn't steal the notebook, password restricted of

21

course, and it wasn't important, only for me in any case.

22

Um basically at that stage, what I had in there was the

23

remnants of my legal practice that I was still trying to

24

nurse along.

Um they were all missing.

I

All the doors I use archive

They labelled

Someone had come into

They'd switched on one

25In where, in the computer?---Dorrington Street, Point Cook. 26

The whole house, it was basically the remnants.

The

27

residents had from, had gone from Bourke Street to

28

Torquay, the office bits including ten years worth of

29

archived records were sitting in the shed, and bits and

30

pieces.

And I had toyed with the idea of - - -

31What were in these archive boxes that you say were taken on the 1.SB:ASC 08/12/08 2Cressy

FTR:1

276

DISCUSSION

1

night?---Tax returns back to 1995, bank statements,

2

credit cards, phone bills going back for a number of

3

years.

4

fond of full of correspondences.

5

80 items of mail that I hadn't even opened, and weren't

6

open.

7

properties and lots of business and lots of clients, lots

8

of children.

9

mobile wireless card for my notebook.

I also had two green shopping bags that I'm quite There might have been

Getting large volumes of mail with lots of

I had things like, I had a modem card, It came in the

10

mail, hadn't opened.

I was learning Portuguese.

My

11

girlfriend at the time, who had just become my ex-

12

girlfriend for the second time, her mother was Portuguese

13

and didn't speak English, so (foreign language), yes I

14

began to learn Portuguese.

15Just a minute, you're getting a wail from the - - -?---These 16

are among the items that were stolen that night,

17

Your Honour.

18I know?---They're among the items that weren't returned to me, 19

Your Honour.

I call the police.

The come out.

20

the investigation.

21

date of birth, car rego number, telephone number, pin

22

code, not the pin code the PUC code for the phone,

23

because it was actually my phone, it's one of those

24

phones I'm paying for.

I tell him who I suspect.

25All right, you told him who you suspected?---Yes.

They do Full name,

They said,

26

"Yes well what we normally do now is we, is we will go

27

and then we'll talk to the person".

28You reported the matter to the police?---I did indeed, simply 29

as a burglary.

Now I have copies of that report that I

30

made, so I can show the report was made to police.

31No, well that's accepted - - 1.SB:ASC 08/12/08 2Cressy

FTR:1

277

DISCUSSION

1MR DEVRIES:

I concede that he's made the report to the police.

2HIS HONOUR:

It's accepted, and indeed Ms Cressy has, in her

3

evidence, stated that the police came to Queen Street,

4

and took possession of documents that she had removed

5

from Dorrington Street, all right?---Yes, Your Honour.

6Then she has at a subsequent date instructed her solicitor to 7

subpoena those documents and they are now safely lodged

8

with the Werribee Court.

9MR DEVRIES:

No, Federal Magistrates'.

10HIS HONOUR:

Federal Magistrates' Court, I'm sorry.

11MR DEVRIES:

Sorry.

12HIS HONOUR:

Thank you?---Your Honour, I suffered huge damage

13

by being deprived of my goods which had no relevance.

14Yes?---Except in one respect to the child custody and access 15

proceedings.

16Yes?---OK.

How a 1995 tax return could have any relevance to a

17

– is beyond me.

Amongst the Portuguese language

18

materials et cetera et cetera.

19

under search warrant about 70 per cent of what was taken.

Now the police recorded

20What did they not recover? 21MR DEVRIES:

How can he give – sorry with respect, Your Honour,

22

I object.

23

did and didn't do if he wasn't there.

24HIS HONOUR:

How can he give evidence as to what the police

Did you see what they had recovered?---Yes, I'd

25

been up many times early this year to look what and

26

wasn't recovered, Your Honour.

27Where did you look at it?---In the custody area, records area 28

at the Federal Magistrates' Court.

29

affidavits from Ms Cressy, two of them attaching copies

30

of other documents that she took that date that she did

31

not hand up to the police.

1.SB:ASC 08/12/08 2Cressy

FTR:1

278

Now I have sworn

Ms Cressy has filed an DISCUSSION

1

affidavit of documents in these proceedings, despite

2

there being no orders made under Order 29.

3

documents attached and referred to therein are of the

4

same relevance and character - they are part of those

5

documents that were taken on 16 November, no relevance at

6

all to the proceedings, either here or before Federal

7

Magistrate O'Dwyer.

8

affidavit of documents.

9HIS HONOUR: 10

Now, the

So shall I tender up a copy of that

It's an affidavit of documents in this

proceeding?---Yes, Your Honour, yes, Your Honour.

11I didn't think there had been any discovery in this 12

proceeding?---None has been ordered, there was confusion

13

I believe in - - -

14What's the date of the affidavits?---May I step down to locate 15

them Your Honour?

16Yes. 17MR DEVRIES: 18

I might say, sir, none of this was put to my

client when she - - -

19HIS HONOUR:

I understand that.

In relation particularly to

20

this issue, Mr Devries, I don't think any of this was

21

addressed in cross-examination, I would be certainly

22

amenable to an application in due course by you in

23

relation to re-calling your client if you considered that

24

that was required.

25MR DEVRIES:

If I was to do that, Your Honour, it would add

26

probably half a day because there is so much that

27

Mr Johnson has raised.

28HIS HONOUR: 29

I will just simply notify you of that and you can

bear that in mind, just see where this goes.

30MR DEVRIES:

If Your Honour please.

31HIS HONOUR:

Is this an affidavit sworn on - - - ?---28 March

1.SB:ASC 08/12/08 2Cressy

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279

DISCUSSION

1

Your Honour.

2Just a minute until I've found it.

28 March, is that the date?

3

---Yes, and an earlier one sworn - witnessed by Mr Hanlon

4

on 11 March 2008.

May I refer to that one first perhaps?

5Just a moment, I will get it off the file. 6

11 March did you

say?---Yes, Your Honour.

7Yes, I follow?---Thank you, Your Honour.

When I attended court

8

on 12 March 2008, Practice Court hearing before

9

Mr Justice Whelan, Mr Hanlon handed to me this letter, it

10

is addressed to me at my mailbox, it is addressed to me

11

at two residential addresses, it is said to go by

12

facsimile.

13

costs".

14MR DEVRIES: 15

It is headed:

"Without prejudice save as to

Then he cannot refer to it any further Your

Honour.

16HIS HONOUR:

Yes, it's privileged?---Your Honour, it - but this

17

is just embarrassing because what it is is actually Ms

18

Cressy's affidavit - - -

19MR DEVRIES:

I object to any reference to a without

20

prejudice - - - ?---The reference is misconstrued, Your

21

Honour.

22HIS HONOUR:

Just a moment, Mr Devries.

I understand your

23

objection.

When do you say you were handed a letter?

24

---As I walked into court on the morning of 12 March.

25Of what year?---This year Your Honour. 26Which court?---Practice Court, Court 10, Your Honour. 27Yes, and what were you handed?---I was handed an affidavit by 28

the plaintiff.

29When was that sworn?---11 March 2008. 30This is the affidavit that you are referring me to?---Yes, and 31

attached to that is a bundle of my documents which were

1.SB:ASC 08/12/08 2Cressy

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280

DISCUSSION

1

amongst those that were taken on 16 November.

2Are they referred to in that affidavit?---Yes, Your Honour, may 3

I read from the affidavit?

4Well, it's probably appropriate then, you wish that affidavit 5

to form part of the evidence in this case?---I do and I

6

thought that it did, Your Honour, I was confused by the

7

case date.

8I understand that but you say that because that contains - I 9 10

have had a quick look at that, that contains admissions to the taking of the documents?---Yes, Your Honour.

11You seek to rely on that affidavit?---Yes. 12I can simply receive - you are really relying on paragraph 2 of 13

that affidavit.

14MS SOFRONIOU:

What I don't know, Your Honour, is whether that

15

was provided in a privilege context, whether that's part

16

of it.

17HIS HONOUR: 18

It's on the court file.

file.

19MS SOFRONIOU: 20

That can't be, Your Honour, thank you.

No, I follow.

Do you have a copy of that

affidavit?

23MS SOFRONIOU: 24

I was

thrown by the reference - - -

21HIS HONOUR: 22

It's filed on the court

Not in front of me but I can do that, Your

Honour, I can get one.

25HIS HONOUR:

It says on:

"16 November 2007 I did remove

26

documents from the premises at 2 Dorrington Street, Point

27

Cook.

28

which are not held at the Federal Magistrates Court

29

pursuant to subpoena are the following."

30

2.20, and then paragraph 3:

31

available to deliver to the defendant at or before

The only documents which were removed on that day

1.SB:ASC 08/12/08 2Cressy

FTR:1

281

Then at 2.1 to

"These documents will be

DISCUSSION

1

attendance at court on Wednesday 12 March 2008."

2MS SOFRONIOU: 3HIS HONOUR:

Thank you Your Honour. Is there any objection?

4MS SOFRONIIOU: 5HIS HONOUR:

No.

What I think I might do is I will receive the

6

whole of that affidavit as an exhibit is probably

7

better?---Plus the covering letter please Your Honour.

8I don't see what relevance the covering letter is?---I like 9

Ms Sofroniou was thrown by the reference to "without

10

prejudice" because I don't know how a law firm of Harwood

11

Andrews calibre could purport to serve an affidavit

12

inside the court building under cover of a letter

13

claiming that the contents were without prejudice.

14MS SOFRONIOU: 15HIS HONOUR:

I object to that commentary Your Honour. You don't even need to object to it, it's

16

irrelevant, we are not - - - ?---It wasn't directed at

17

all to Ms Sofroniou.

18

about the without prejudice reference.

Just that I shared her confusion

19Do you want to show Ms Sofroniou the letter, it may be that it 20

is so uncontroversial that it can be tendered anyway I

21

think is the easiest way?---Yes, thank you Your Honour.

22

I don't know how an affidavit in proceedings can be

23

served on a without prejudice basis.

24I don't know what's in the letter and it might have something 25

else.

Just a moment.

26MS SOFRONIOU: 27HIS HONOUR:

Thank you.

28

Thanks Ms Sofroniou.

to it.

31

There's something attached

Is that the affidavit is it?

29MS SOFRONIOU: 30HIS HONOUR:

I have no objection Your Honour.

Yes. What probably would be the best thing, could I -

thanks Mr (indistinct)?---And Your Honour these are the

1.SB:ASC 08/12/08 2Cressy

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282

DISCUSSION

1

attachments - - -

2Well just - all right well what I'll do is I'll receive all as 3

one exhibit - - - ?---Thank you Your Honour.

I don't

4 want to give you part of the document (indistinct). 5 6#EXHIBIT 20 Letter of Howard Andrews to the defendant 7 dated 11/03/08 together with the copy 8 affidavit of the plaintiff sworn 11/03/08 9 and together with the bundle of documents 10 enclosed in the letter. 11MR DEVRIES: 12

Your Honour if I could just have a very quick look

at the bundle.

13HIS HONOUR:

Yes.

14MR DEVRIES:

I'm not too concerned about the other two

15

documents.

16HIS HONOUR:

I'd only need a 30 second perusal.

Can I ask you Mr Johnson, a yes or no answer to

17

this before I handed them over, do they correspond with

18

the list?---Yes Your Honour.

19

Your Honour.

Indexed in the affidavit

20Well you may still have a look at them but - - 21MR DEVRIES: 22

Your Honour.

23HIS HONOUR: 24

Just one aspect Your Honour, check it very quickly

All right?---I assume (indistinct).

I've never

bothered to - seemed so evident Your Honour.

25Well I would act on that basis. 26MR DEVRIES:

I can hand it back now Your Honour.

27HIS HONOUR:

Thank you very much?---Your Honour on 28 March

28

2008 the - - -

29Sorry?---On 28 March 2008 the plaintiff filed affidavit 30

documents.

31Yes?---I think there was some confusion by her new instructors 32

who were very new to the file, Berry Family Lawyers that

33

what Mr Justice Whelan had ordered was they'd somehow

34

construed that as - - -

1.SB:ASC 08/12/08 2Cressy

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DISCUSSION

1It doesn't matter what - how they construed it?---Her affidavit 2

of the documents, there's simply no more than a list of

3

those documents that Your Honour (indistinct) in evidence

4

in that exhibit and I had a letter from Berry Family

5

Lawyers.

6I'm sorry is - you say the affidavit of documents - - - ? 7

---The affidavit of documents consists solely of those

8

portion of documents taken from me on 16 - - -

9Consists solely of the documents which are referred to in that 10

letter 11 March - - - ?---Yes Your Honour.

11- - - is that what you're saying?---Yes Your Honour. 12So it just replicates that is it?---Yes Your Honour. 13All right?---And I have a letter from Berry Family Lawyers plus 14

a massive attachment, identical - I'd like to tender this

15

as an exhibit to Your Honour, confirming that point.

16What are you showing me?---A letter I received from Ms Cressy's 17

current solicitors saying these are the documents

18

referred to in our affidavit of documents.

19So these are all the documents referred to in that affidavit. 20

You want to tender that too do you?---Yes Your Honour.

21 Two affidavits with identical bundles - - 22 23#EXHIBIT 21 Letter of Berry Family Law to the 24 defendant dated 09/04/08 with attached 25 documents. 26And you say that duplicates what had already been handed to 27

you?---I've not checked page by page, but yes - - -

28Right?---Your Honour Ms Cressy gave in evidence to the effect 29

that she handed to the police everything that she took on

30

16 November, she gave that evidence on Thursday afternoon

31

or Friday - yes, Thursday.

32

been right.

33

the case given that her then solicitor, Mr Hanlon, handed

1.SB:ASC 08/12/08 2Cressy

Thursday afternoon would have

I just want to point out that that can't be

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DISCUSSION

1

to me that bundle of originals on 12 March this year.

2

think there's a number of inferences that - - -

I

3Well I follow that but this is really a matter of argument 4

now?---Yes, yes.

5You're talking about the relevance of the tender?---The 6

suggestion was on Friday that I'd produced a birth

7

certificate, I was producing stolen document as evidence

8

in my case.

9

the wrong way in a lot of these allegations - - -

I'm suggesting that the telescope was around

10Yes well you're now going into argument again?---Thank you Your 11

Honour.

12

Honour.

We make it through submissions though Your

13Well let's just get through your evidence first.

You told me

14

you'd finish by lunch and it's eight minutes to go?

15

---No, no.

16

lunch - - -

I said I'd try to finish to finish by

17Well keep trying?---- - - Your Honour. 18Keep trying?---Thank you.

I just want - sorry, this is a

19

submission point and I'll deal with it in submissions

20

Your Honour.

21

that were never returned to me.

22

example.

23

which I had not fully backed up because it was a very

24

painful process and I hadn't found anyone who could teach

25

me how to download them quickly.

26

photos, family photos of all of my children.

27

photos I wanted to use in, in evidence including my

28

daughter being delivered up to me in very, improperly

29

dressed and improperly fed at collection time at, under

30

the Family Court orders for time with, with me.

31

did finally get to inspect my goods it was January of

There are other documents that - and goods My mobile phones for

I had hundreds of photographs stored on them,

1.SB:ASC 08/12/08 2Cressy

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285

There were holiday There were

When I

DISCUSSION

1

this year, late January.

2

Honour.

They'd all been deleted Your

3What had been deleted?---All of my photos. 4So you saw the mobile phones did you?---I, I inspected them in 5

the evidence room up at the Federal Magistrates' Court in

6

late January Your Honour.

7

them.

8

late December to the Werribee police station and just had

9

a quick visual, went to switch the phones on but the

First chance I had to access

No, sorry, second chance.

I did pop in in mid to

10

batteries were flat, so I couldn’t see what data had been

11

manipulated.

12You didn't make that allegation - you didn't put that to 13

Ms Cressy in cross-examination did you, so she has had no

14

opportunity to respond to that.

15

deal with that in due course?---There are difficulties

16

because I thought like those affidavits were already in

17

the body of evidence, I thought it was the case that it

18

was - - -

Anyway, we will have to

19No, I think I explained it to you on so many occasions I hate 20

to think?---Not until I opened my case, Your Honour, I'm

21

sorry.

22I don't think that's right but let's move on?---Thank you, Your 23

Honour.

24Thank you Mr Johnson?---I think that's all I need to say about 25

the history of the missing documents Your Honour.

26Right?---I might in the minutes before lunch just talk about my 27

employment history.

When I met Ms Cressy I was a full

28

time employee of Minter Ellison.

29

being promoted to special legal counsel, not quite a

30

salaried partner Your Honour.

I was in the process of

31How long had you been at Minters for?---At that stage about 1.SB:ASC 08/12/08 2Cressy

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286

DISCUSSION

1

five years, Your Honour, and I'd been with Corrs Chambers

2

Westgarth for the six years before that.

3

did my articles in 1990.

4

years I was a full time academic at Monash University.

5

Am I getting irrelevant?

That's where I

Before that, the previous two

6No, no, that's sufficient?---Thank you.

While I completed my

7

second degree, my Bachelor of Laws on a part time basis,

8

thank you.

9You were at Minters when you met Ms Cressy?---Yes.

About a

10

year later I accepted the employment opportunity from

11

Barwon Water, so on 4 October 1999 I commenced working

12

with Barwon Water.

13

Street, two blocks from Harwood Andrews and just around

14

the corner from Barwon Water.

15

walk which apart from my credentials and attitudes, et

16

cetera, was one of the things that Baron Water really

17

liked.

18

to work from - sorry, I ceased working for Minter

19

Ellison, commenced working for Barwon Water.

20

up my own legal practice which I called Sutton Lawyers -

21

sorry Sutton Johnson.

Now, I had moved to 142 Gheringhap

It was an easy two minute

So I ceased working for Barwon Water and coming

I also set

22When did you commence Sutton Johnson?---I registered in very 23

late August or 1 September 1999.

Now, I was writing a

24

monthly column for the Law Institute Journal - - -

25As I understand it Sutton is the name of Ms Cressy's father, is 26

that right?---Yes, Your Honour.

27Is that why you adopted that name?---Ms Cressy and I were 28

dating, I didn't want to be a James Johnson and Associate

29

because I had no associates, I thought it was misleading,

30

I wanted something that went like Minter Ellison, Baker

31

McKenzie, something Johnson.

1.SB:ASC 08/12/08 2Cressy

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287

DISCUSSION

1But did you get Sutton - was your choice of Sutton because of 2

Ms Cressy?---That's the etymology of it, yes Your Honour.

3Thank you very much?---Thank you, and it looked good having a 4

firm name on my monthly columns in the Law Institute

5

Journal, my various other speaking engagements for the

6

Law Institute.

7

that time.

8

about two and a half years.

9

Committee and I was on various other committees as a

I chaired two Law Institute committees at

I was a chairman of the GST Task Force for I chaired the State Taxes

10

result.

I was also given speaking engagements through

11

the Northern Territory Law Society at about that time as

12

well, all because of the need to get up to speed quickly

13

with the GST coming in.

14

providing GST advice to other lawyers.

15

lawyer's lawyer on GST.

16

the Legal Practitioners Liability Committee who set up a

17

GST help line for the profession.

18

practitioner on the committee of three.

19

big city law firms, Your Honour.

20

practice right from day one was 150 per cent of what my

21

salary was from my 9 to 5 Barwon Water in house position.

22

I had great cash flow from that point, I had great things

23

that I could do and in building my property portfolio I

24

went on to do it.

25

have given evidence on our living arrangements.

26

Gheringhap Street.

I set up my own consultancy I was the

One of my biggest clients was

I was the only sole The others were

My funding from my

Now, Ms Cressy and I were dating, I I was at

27I see the time, if you're going to move on to that it is 28

probably an appropriate time.

29

you'll take to complete your examination-in-chief?

30

---Your Honour, given the pace I've gone at this

31

morning - - -

1.SB:ASC 08/12/08 2Cressy

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288

How long do you think

DISCUSSION

1Hopefully not too long?---There's a good two hours, Your 2

Honour.

3You are going to have to - - - ?---Just a moment - no, sorry, 4

I've actually cleared a few things.

5You are going to have to focus on what is relevant, rather than 6

me putting a lot of strain on my vocal chords having to

7

remind you ever three minutes to stay relevant, all

8

right?---Your Honour, I think there's about an hour of

9

evidence-in-chief that has my relationship with

10

Ms Cressy, which is for my counter-claim against her.

11

need about an hour I think for my relationship with

12

Harwood Andrews which is my counter-claim against them.

I

13Can I suggest again you give careful thought to remaining 14

relevant, all right?---I hope I'm doing a good job so far

15

Your Honour.

16Variable is the kindest I will put it. 17

We will now have

lunch?---Thank you Your Honour.

18<(THE WITNESS WITHDREW) 19LUNCHEON ADJOURNMENT 20

1.SB:ASC 08/12/08 2Cressy

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289

DISCUSSION

1

(Kaye J)

2UPON RESUMING AT 2.12 P.M.: 3HIS HONOUR:

Easily becoming the norm Mr Devries.

4MR DEVRIES:

Not in this honourable court.

5HIS HONOUR:

Right, Mr Johnson.

6MR JOHNSON:

Yes Your Honour.

7HIS HONOUR:

Into the witness box thanks.

8MR JOHNSON:

Thank you Your Honour.

9
Yes sir.

Thank you.

Your Honour I'm just wondering

11

whether I should raise that affidavit of the other

12

witness Mr Cochran, at this point.

13HIS HONOUR: 14

Sorry?---I'm just wondering - because time isn't

marching - - -

15Yes?---- - - Mr Peter Cochran called and compelled to give 16

evidence, should I raise it again with you at this stage?

17Well what have you done with Mr Cochran?---I've subpoenaed the 18

gentleman and the subpoena was served within time.

19

have an affidavit of service by the process server who of

20

course is not personally known to me.

21Yes?---And that is as far as I've gone.

I

I, I have no other way

22

of contacting him, Mr Cochran, nor would I want to

23

contact him to be honest.

24When was he served?---On 24 November 2008 at either 9 a.m. or 25

9 p.m..

It's not clear from that affidavit service.

26Was he given conduct money?---Yes he was given $10 conduct 27

money.

I'm just concerned if the - - -

28When was he required to attend?---On Tuesday morning, Tuesday 29

of last week Your Honour.

The start of the trial.

30He didn't attend then?---No Your Honour, I believe not. 31Well give me a look at the subpoena and the affidavit? 1.LL:ASC 08/12/08 2Cressy

FTR:22

290

JOHNSON XN

1

---Sorry Your Honour I - - -

2Can I have a look at the subpoena and the affidavit? 3

---Certainly Your Honour.

There's, there's an invoice

4

(indistinct) with it as well Your Honour and I have

5

copies for my learned friends to distribute.

6

handed these in earlier today - yes thank you

7

Ms Sofroniou.

I may have

8Well the affidavit doesn't refer to handing the witness any 9

conduct money?---No it doesn't Your Honour but it does

10

include a photocopy because I actually provided the $10

11

cash to the process service to hand over.

12

at that, even (indistinct) Your Honour would be expected

13

and I did hand him $10.

I'm surprised

14From recollection it's a requirement, before I take any action, 15

under the paroles?---With my letter there's a watermark

16

partly produced of the moneys, of the note that was

17

handed to him.

18Yes well I think before I took any action under the Act, under 19

that the processor would need to swear an affidavit that

20

he provided - - - ?---Or give viva voce - - -

21Viva voce evidence?---- - - which is my concern because I 22

expected to see that - I didn't prepare this affidavit.

23

The process server does it - - -

24I notice there is an address where he's successfully served 25

Mr Cochran?---Yes Your Honour.

As I say I did not see or

26

(indistinct) this affidavit - - -

27I don't know whether - - - ?---The process server prepared 28

it - - -

29It would be desirable that some approach be made to Mr Cochran 30

before I turn the forces of law on him, advising him for

31

the necessity for him to comply with the subpoena?

1.LL:ASC 08/12/08 2Cressy

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291

JOHNSON XN

1

---He was given the relevant information in the notes

2

attached to the - - -

3I understand that - - - ?---I have no way - I've never met this 4

gentleman and - - -

5Mr Devries I don't - there's simply, I put this all as an 6

invitation, is there any possibility for your instructor

7

to make contact with Mr Cochran advising him of the

8

consequences that may ensue if he does not comply with

9

the subpoena?

10MR DEVRIES:

Your Honour before I - I'll get some instructions.

11HIS HONOUR:

Yes.

12MR DEVRIES:

I cannot concede how, on the information I have,

13

how the evidence of Mr Cochran can be of any assistance

14

to Your Honour - - -

15HIS HONOUR:

Well - - -

16MR DEVRIES:

- - - Mr Johnson each time Your Honour's asked him

17

to assist you that way he has avoided answering the

18

question.

19

can assist Your Honour in my respectful submission and is

20

not going to be a cooperative witness for Mr Johnson in

21

any case.

22HIS HONOUR:

There is no considerable way that this person

Well he may or may not be and that's - he's got to

23

give evidence and he's got to tell the truth and that way

24

he'll be cooperative but, I'm loathe at this stage to

25

interrupt your evidence to debate - to hear long debates

26

of the issues as to relevance but - - - ?---I, I can

27

answer them quickly Your Honour.

28Well that would be very gratifying?---Thank you Your Honour. 29

In the amended statement of claim the plaintiff is

30

claiming that she worked as an adult service provider.

31

She doesn't specify the period but she's also claiming I

1.LL:ASC 08/12/08 2Cressy

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292

JOHNSON XN

1

believe that she channelled funds from those activities

2

to me, which I then used to purchase my properties.

3

this man, if I'm saying too much please stop me in a

4

minute Your Honour, I believe from correspondence that he

5

wrote to me which I wish to tender in evidence that he

6

was an intimate personal relationship with Ms Cressy for

7

about three years.

8

South Yarra.

9

licensed, unlicensed I don't know – several brothels,

Now

While she was living under my roof at

And he observed her working at several

10

Your Honour.

And it's also I believe to the Part 9

11

application, being in an intimate relationship with one

12

or many people, I think, other than myself which makes it

13

a little bit difficult on the balance of evidence for the

14

plaintiff to assert that she was - - -

15She's in a domestic relationship with you?---Well bona fide for 16

starters, I believe those words have independent

17

operation.

18

Domestic, as opposed to, sorry the word feral comes into

19

my mind, but I probably shouldn't say that.

20

mala fide, domestic feral.

Bona fide as opposed to mala fide perhaps.

Bona fide,

21The quicker - you say it would go to the relevance as to 22

whether the words bona fide aren't there because it's a

23

genuine domestic basis?---Yes, I apologise for the delay

24

in that, Your Honour.

25MR DEVRIES:

I've got an answer to Your Honour's first

26

question.

27

Mr Cochran, and indeed she's the agreed family member in

28

an intervention order taken out against him.

29HIS HONOUR:

My client's got no contact details for

Mr – it seems to me that at least potentially

30

there's some relevance in relation to the question as to

31

the existence of the domestic relationship which is an

1.LL:ASC 08/12/08 2Cressy

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293

JOHNSON XN

1

issue raised by Mr Johnson.

2

he sought to lead evidence on that behalf, I would allow

3

it in.

4MR DEVRIES: 5

On that basis it would – if

Having heard what he said, Your Honour, I can't

take you.

6HIS HONOUR:

No.

7MR DEVRIES:

It wasn't intended to take issue with that.

8HIS HONOUR:

No, thank you.

9

Now Mr Johnson, I would not take

action under, unless you can tell me as a matter of law I

10

can, under the – in relation to the subpoena on this, I

11

was, had evidence that conduct money had been paid.

12

it's a while since I've looked at the rule, and I may be

13

wrong on that?---Your Honour, I am the last lawyer - - -

But

14Which is the relevant rule, do you know?---I'm the last lawyer 15

in this, in your court room who could give you assistance

16

on that legal issue.

17

the process server or the company that engaged him, AA

18

Professional Documents Service, a $10 note along with the

19

original subpoena, Form 42A, and my covering letter which

20

is partly handwritten.

21

photocopy of the $10 note, at the top of the letter.

All I can say is that I did give

There's a watermark of the

22Just a minute?---And I relied on my agents to do for their 23

$80.96, the preparation of an affidavit for service in

24

the proper form.

25I understand that?---Thank you, Your Honour.

And that was my

26

concern, that if the deponent, Steven Whitiking, it's

27

German, it's German, has to give a lot of evidence - - -

28Can I tell you this.

It's Rule 42.061, "An addressee need not

29

comply with the requirement as a subpoena to attend to

30

give evidence unless conduct money has been handed or

31

tendered to the addressee a reasonable time before the

1.LL:ASC 08/12/08 2Cressy

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294

JOHNSON XN

1

day on which attendance is required".

What I would

2

require, I would not issue a warrant for his arrest under

3

s.150 until I had evidence to that effect?---May I be

4

excused for ten minutes to ring the process server to

5

have Mr Whitiking brought before you as soon as possible,

6

to give vice voce evidence that he did hand over the

7

conduct money.

8

professional, they'd be one of the few - - -

He is a professional, they are

9When will you complete your evidence?---Given that there's 10

cross-examination, I can't say for sure I'll complete my

11

evidence in chief this afternoon, Your Honour.

12I think we'll proceed with your evidence in chief.

If I get

13

tired, we'll take a break at quarter past three and you

14

can ring Mr Whitehead, or whatever his name is then, and

15

he can be here tomorrow morning?---Thank you,

16

Your Honour.

I'm indebted Your Honour.

17Going back to your evidence, you were – you had been telling me 18

about the details of your employment?---Yes, Your Honour.

19That you moved to the water, Barwon Water in October 99, and 20

you set up your own consultancy, which you were earning a

21

lot of money advising people about the GST legislation

22

that was about to be introduced?---Thank you,

23

Your Honour.

24Right?---I was residing at Gheringhap Street.

Ms Cressy, with

25

her two boys, were residing at 5 Illouera Avenue,

26

Grovedale, along with the maternal grandmother, Ms Cressy

27

senior, and um the middle of the – the younger Rose,

28

Ms Cressy's junior, the plaintiff's younger – I'm sorry,

29

I understand it's Ms Cressy's younger half-sister.

30You can use Christian names if it helps?---Thank you, thank you 31

I shall from hence forth, Your Honour.

1.LL:ASC 08/12/08 2Cressy

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295

I wished to JOHNSON XN

1

encourage Ms Cressy to um cease working at Lorraine Starr

2

Brothel, which is the place that we met on 12 September

3

1998.

4

during all of 1999.

5

Donald Trump and the apprentice in my evidence this

6

morning, this was my first attempt, looking at the story

7

of Poppy King, the lipstick queen, who was funded into

8

her own business by a donation of $20,000 from an older

9

man, and um a garage provided by her parents.

And which she sporadically, or most often worked Um to do that, um I mentioned um

Now what I

10

did, was I set up a business known as The Gallery of

11

Artemis.

12

Your Honour?

Should I go into the, how the name was derived

13Don't think it's very relevant, is it?---Thank you Your Honour. 14

Um this was a premises that I leased in Geelong.

15

was like a T-intersection.

16

Street, 400 metres from my home, you turn left at Ryrie

17

Street.

18Yes?---You'd be at Barwon Water.

Um it

If you walked down Gheringhap

Barwon Water's one of the

19

biggest employers in the region, um with substantial

20

offices, I think only surpassed by the City of Greater

21

Geelong.

22

Geelong - - -

If you walked half a block down, the

23I don't think its actual location matters, does it?---All 24

right, Your Honour.

And if you walked a distance - - -

25You leased the premises?---Yes. 26In your name?---80 Little Malop Street, Geelong, in my name. 2780 Little Malop Street, is it?---Yes, yes, the corner of James 28

Street and Little Malop Street.

29

family.

$400 a week from a Greek

The downstairs area - - -

30For what period of time did you lease it, was the term of the 31

lease?---It was a three year, and I had four or five

1.LL:ASC 08/12/08 2Cressy

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296

JOHNSON XN

1

three year rolling options.

2All right?---It was substantial, Your Honour.

The idea was to

3

create an art gallery space upstairs.

Which would also

4

be a convention space, party space, lots of art work,

5

hopefully make some money for local artists and

6

downstairs the ideas were to sell high end ladies

7

fashion, dresses, Australian designers, accessories, and

8

even have a little bit of a café and a reading corner.

9

didn't have sufficient funds to fully carry it through

10

and ran into funding difficulties because of the cost of

11

funding stock, so it never really achieved the

12

goals - - -

I

13Was it a company or a business name?---As my tax returns, which 14

are included in the loan materials for the Dorrington

15

Street loan application will show my own name, Your

16

Honour, there was nothing fancy, no corporate structures.

17Did you register the business names?---Of course, Your Honour. 18In your name?---Yes, Your Honour, and that also assisted 19

because the losses from that business in the early set up

20

stage could be offset against my other taxable income,

21

and that is all demonstrated in my tax returns for '99,

22

2000, 2001 tax returns, some of which are included in the

23

bank documentation for when I applied for the loan for

24

Dorrington Street, so some of those materials are in that

25

exhibit.

26

Bank mortgage documents and submitted donations.

27

you, Your Honour.

28

quite a few businesses I'm running myself, I'm inside

29

Barwon Water as in-house legal counsel, I was a full time

30

employee at that stage and I had my moonlighting legal

31

consultancy Sutton Johnson, so I needed to hire staff to

The Commonwealth Bank letter enclosing Colonial

1.LL:ASC 08/12/08 2Cressy

FTR:22

Thank

That business, because I already have

297

JOHNSON XN

1

run it.

Now, the primary reason for setting that

2

business up at all was to give Ms Cressy Junior an

3

interest other than the prostitution work that she had

4

been doing.

5

intention - was once the business was successful she

6

would draw a salary working there in the meantime and

7

then she could progressively purchase equity, perhaps

8

even taking full equity off me if it had ever taken off.

My intention - if I might describe my

9Did you discuss that intention with Ms Cressy?---Yes, Your 10

Honour.

I hired staff - not just Ms Cressy but her

11

mother.

Her mother never did any accounting or book

12

work, I did all the tax records myself and they were all

13

properly kept as a shop assistant part time.

14

providing employment to two - to both Ms Cressy's.

15

Ms Cressy wasn't happy working as a shop assistant.

16

loved travelling up to Melbourne and buying lots of stock

17

at my expense, with my money.

18

money, it was my business, nothing improper about that.

19

Purchasing decisions perhaps not wise but so be it, she

20

was happy to be on the purchasing side of things, but not

21

the actual dealing with customers in the shop.

22

decided three, four months after Illyana was born to go

23

back to working at Lorraine Starr.

24

employees working for me, Kim as I recall, Kimberley, my

25

memory is refreshed from Ms Cressy's evidence - Kimberly

26

Brookes.

27

Starr brothel in Geelong.

28

relevance, none of it relevant I believe that she sold

29

the business for my recent company searches about four

30

years ago.

So I was

She

Of course it would be my

She

I had two other

He was the son of the lady who owned Lorraine It may be sliding off

31If it's not relevant don't say it?---All right, Your Honour. 1.LL:ASC 08/12/08 2Cressy

FTR:22

298

JOHNSON XN

1

The other lady that I hired was a young lady by the name

2

of Bianca, I don't think I ever knew her surname or

3

didn't recall - Davies being her surname.

4

from Ms Cressy's evidence.

5

worked as an adult service provider at Lorraine Starr,

6

along with Ms Cressy.

7

Demographically it's bad, Geelong is a very low socio-

8

economic area.

9

solely on - there was no demand for the product that we

10

I am refreshed

Who was a young lady who

The business did not go well.

Over 20 per cent of households rely

were selling.

11This business didn't go well so what happened to it?---I had to 12

close it in the end, so being internal - - -

13How long was it open for?---Up until - well, it didn't start 14

right away.

15Of?---'99.

I signed the lease in December.

That was a very critical day in the context of my

16

relationships plural with Ms Cressy Junior, and so I must

17

come back Your Honour to describe that as one of the two

18

key breaking points.

19Business didn't go well, how long was it open for, just 20

approximately?---I signed the lease in December 1999.

It

21

didn't really open until about a week, 10 days before

22

Ilyanna was born, so late May, 31 May might be the exact

23

day, 2000, we had an official opening for the gallery and

24

there were lots of Barwon Water people of course invited.

25Yes, that’s interesting but no relevant?---Thank you, Your 26

Honour.

27When did it close?---It closed in about July 2001.

The day

28

that I signed the lease on that shop, blocking myself

29

into a $400 a week commitment I would not have done but

30

for my relationship with Ms Cressy who was not domiciled

31

with me and my desire to see her make a better show of

1.LL:ASC 08/12/08 2Cressy

FTR:22

299

JOHNSON XN

1

her life by giving her a lift up like Poppy King received

2

to set up a business that she could work in, in an area

3

that she was inspired in, that she might one day take

4

over some or even all of the ownership once she had

5

worked and earned and achieved that.

6

home that Thursday evening - - -

I returned to my

7I take it from what you have just said that at that stage you 8

cared a lot about Ms Cressy?---Yes, Your Honour.

9

you, Your Honour.

Thank

10All right, sorry, keep going?---Thank you, Your Honour.

I

11

returned home that evening from my Barwon Water.

12

exhausted because the previous Wednesday night I'd

13

completely worked through, completing tasks, advices for

14

Sutton Johnson clients directed to me by the Legal

15

Practitioners Liability Committee.

16

I was extremely tired.

17

upstairs in my kitchen, my upstairs kitchen.

18

wasn't unusual because I had given her keys to the door,

19

and she was free to come and go as she pleased.

20

washing some dishes in the kitchen sink.

21

upstairs, I stand in my doorway of the kitchen.

22

Cressy turns to me and she says - she says, "I've gone

23

back to work today," and she had a very strange voice on.

24

I immediately took that as a reference that she was

25

working again at Lorraine Starr.

26

you're the father.

27

I wish I could kill this thing growing inside me.

28

I could kill you.

29

she is saying this, she is throwing coffee cups at me,

30

including a relevant detail, a cup that she had bought me

31

for my birthday that year, a Looney design on it.

1.LL:ASC 08/12/08 2Cressy

FTR:22

So I had not slept.

I returned home.

I hate you.

I was

Ms Cressy was Now, that

She was

I walk

"I'm pregnant.

Ms

I hate it.

I think

I hate me.

I wish I could kill myself."

I wish

300

Now, as

She

JOHNSON XN

1

picked up a plate.

She smashed it.

She pulled out the

2

big roast meat carving knife and held it towards me.

3

that point I walked backwards out of the door,

4

downstairs, left my home.

5

around the central grid streets of Geelong.

6

back an hour later, Ms Cressy had - had left.

7

little contact with her for the next few weeks.

8

that was the - the Y2K New Years Eve, Your Honour,

9

millennium bugs and all the rest of it.

At

I spent the next hour walking When I came I had very We did -

I had organise

10

to take her and her two boys on a week's holiday to South

11

Australia in Kangaroo - Kangaroo Island by car.

12

bought a brand new Landrover a couple of months earlier.

13

We did go on that holiday but it was very strained.

14

Cressy was quiet, did not speak, slept most of the time.

15

I had been teaching her to drive.

16

permit.

17

trip back, but we had an argument because she was

18

insisting that the very moment we got back to Geelong,

19

she was going off to Lorraine Starr to work, and I would

20

have to look after her two boys.

21

week trying to talk her out of taking her life.

I'd

Ms

She had her learners

She was supposed to drive part of the return

And I had spent that

22How long was the holiday?---About a week, Your Honour, most of 23

which Ms Cressy and her youngest boy Skye slept.

So it

24

was mostly myself and Treece getting to see the - the

25

seals on the beach and the remarkable rocks and those

26

sorts of things.

27

I.

28

Barossa on that last day back to Geelong.

29

quietly, did not speak at all.

30

I don't have a clear memory of it.

31

thing was I took her back to Grovedale.

We did a lot of things, just Treece and

So I drove back all the way from Adelaide via the

1.LL:ASC 08/12/08 2Cressy

FTR:22

301

Ms Cressy sat

We got back to Geelong. I think the logical That's the only JOHNSON XN

1

thing that makes sense.

Her - dropped her and the kids -

2

I must have.

3

her and the kids at Grovedale, came back to Gheringhap

4

Street.

5

again for - so this - we're talking 2 or 3 January 2000.

6

OK.

7

be a father for the fourth time.

8

the father."

9

January, all of February, March, April, till about mid

I'm just struggling to remember.

Dropped

I had no contact at all, did not see Ms Cressy

I'd only been told three weeks earlier that I might "I think you might be

I had no contact with her for the rest of

10

May.

Now, to the best of my knowledge and belief,

11

Ms Cressy was working back at Lorraine Starr during that

12

part of her pregnancy, up to and including the early part

13

of May 2000.

14

James, I've been young and foolish.

15

together with you."

16

money into her bank account all the way through.

17

didn't want her to feel that she was under any financial

18

necessity to do that work, certainly and God forgive her

19

when she's three months or more pregnant.

20

money into the bank account for this woman and those two

21

little boys who are not mine, although I cared, and do to

22

this day care greatly about.

23

there were various proposals.

24

old building in Geelong called the Ritz, do it up as a

25

brothel called the Garden of Eden, all sorts of crazy

26

stuff.

27

the little girl who might be mine, and find out is she

28

mine.

29

believe, the best of me, but whether it's by nurture

30

rather than nature, by osmosis rather than DNA, I don't

31

know.

I then get a phone call from her.

"Oh

I want to get back

Now, I was putting - depositing I

So I'm putting

She rings me up in May and She wanted me to buy an

I just wanted to get through the birth period of

Now, there are physical resemblances.

She has, I

She also has the best of her mother, and there is

1.LL:ASC 08/12/08 2Cressy

FTR:22

302

JOHNSON XN

1

a lot of good in her mother.

2

lot of other things.

It's just mixed up with a

3Let's just cut out the character?---Thank you, Your Honour. 4And the kids, and remain relevant to the issues?---Thank you, 5

Your Honour.

6As far as I am concerned, the plaintiff has said that Illyana 7

is your daughter.

You have not produced any proof to the

8

contrary, and in fact I don't really hear you deny it.

9

For the purposes of these proceedings, it would seem to

10

me on the balance of probabilities that Illyana is the

11

relevance of an application under Part 9.

12

be able to just talk me out of that, but that's, I must

13

say, the state of the evidence at the moment?---Your

14

Honour, I don't feel a need to talk you out of it.

Now, you may

15Right?---But I do find a need to find out the truth, whether 16

it's now or in ten years time.

17Well, that's for outside this court?---But that's a - exactly, 18

Your Honour, thank you.

19

birth, about four weeks prior, Ms Cressy and I are seeing

20

each other again.

21

bit more time at the Grovedale house, probably more of my

22

time at the Grovedale house than at my own house in

23

Gheringhap Street.

24

birth period.

25

that I reminded - May 2000 while heavily pregnant I

26

reminded Ms Cressy that I had the lease on the shop.

27

had set up my office practice upstairs, I had moved it

28

from my front bedroom at Gheringhap Street down to

29

upstairs.

30

involved in that project.

31

of work had to be done, I had to actually sand down the

1.LL:ASC 08/12/08 2Cressy

So, as of just before Illyana's

In the circumstances I am spending a

OK, that gets us through the - the

It was really only just in that May period

I

So then she became reinterested in getting

FTR:22

So basically there was a lot

303

JOHNSON XN

1

floors sand that myself, it was very expensive.

2

be going 22 hours without sleep.

3

work, I'd do my Sutton Johnson consultancy, I'd be

4

sanding floors in this gallery, and by doing that that's

5

how we achieved getting an opening - my memory is that Ms

6

Cressy was only like two or three days before giving

7

birth when we opened,

8

31 May 2000 would be about the right date.

9

lost there are some formal invitations that were sent They could be anywhere.

I would

OK.

I'd do my Barwon Water

Somewhere

10

out.

After the birth of

11

Illyana I had an extra reason to be on good terms with

12

the Cressy household.

13

excitement of the birth to live at Gheringhap Street by

14

myself where I continued to live up until about

15

April 2001.

16

thinly.

17

salary from Barwon Water was just under six figures which

18

was nice but not nearly even half enough.

19

work, because it was all in the preparation and the first

20

year of bedding it down, GST had been around in force for

21

about nine months now.

22

Committee was no longer a substantial source of income.

23

I needed to find the next wave of work.

24

work was no longer available.

25

to move up to Melbourne in order to sustain and as I

26

needed to do to grow my income level, particularly when I

27

had over six figures of debt accumulated from the moneys

28

that I'd brought into the gallery business.

29

for a number of residences up in Melbourne in the

30

Richmond area and the South Yarra area and I then settled

31

on the South Yarra as the place I would move to.

I continued after the initial

Now, at that point I had spread myself too

The gallery was a major drain of funds.

1.LL:ASC 08/12/08 2Cressy

FTR:22

My

The easy GST

The Legal Practitioners Liability

304

That easy GST

I resolved that I needed

So I looked

JOHNSON XN

1

Ms Cressy in the meantime had been at Grovedale from I

2

believe around about the birth of her second child Skye,

3

12 July 1998 through up until April 2001.

4

that that was a lease arrangement, I believe it's not

5

contested between Ms Cressy as the tenant and the

6

administer of housing, public housing Your Honour.

7

rental arrangement managed by the Salvation Army under a

8

young women in distress program emergency short term

9

accommodation.

Now I believe

A low

She'd been there nearly three years Your

10

Honour.

She told me she was under pressure to move out.

11

I sought because of the gravity of, of - her children

12

were in long term care in the Geelong area.

13

biological father, although the contact was intermittent,

14

was in the Geelong area.

15

area.

16

her children in the Geelong region even after I relocated

17

back up to Melbourne.

18

accommodation, I was unable to find alternative

19

accommodation even if I put my name down on the lease.

20

And things were looking rather grim and in the end I

21

agreed to her request to let her and the children move up

22

with me to South Yarra.

23

was Ms Cressy and I plus Treece, Skye and Illyana living

24

in the house that I rented in my name and under the lease

25

I was supposed to be the only tenant, in Nicholson

26

Street, South Yarra.

27

stressful especially when Mr Peter Cochran erupted on the

28

scene about five months later.

29

about a year where after discussing things with Julie,

30

I'd backed out of spending time with my own three

31

children, David, Dylan and Jessie.

Treece's

Her mother was in the Geelong

All the gravity pointed to Ms Cressy staying with

1.LL:ASC 08/12/08 2Cressy

FTR:22

She was unable to find alternative

So from about June 2001 there

Things were all a bit hectic and

305

So I had a period of

Certainly I wouldn't JOHNSON XN

1

bring them to the house because it was, it was - there

2

was too, too much negative stress ball - there's no way

3

you could be a nurturing parent with the children in that

4

environment.

5

kept the funding up to Julie, we stayed in contact by

6

phone.

7

weekend but I certainly didn't have them living over - I

8

didn't have any live with time under the new (indistinct)

9

with my three children for that period.

So I had very little contact.

Of course I

I would visit the children for a few hours of a

And when that

10

period ended I was quite shocked actually when I saw them

11

again.

They changed remarkably in the year or so - - -

12Well now you're becoming irrelevant again?---I hope I'm doing 13

all right mostly Your Honour.

That was the configuration

14

of the household up until, and I hope I'm starting to

15

overlap a little bit on my earlier evidence until Ms

16

Cressy - - -

17(Indistinct) on your evidence?---I hope I'm overlapping 18

consistently - - -

19You were there until 7 March 2003 when you moved into 20

Dorrington Street - - -?---Thank you Your Honour and

21

about six months earlier Ms Cressy Senior - - -

22Yes?---- - - and Rose - - 23Had moved into South Yarra and the whole lot of you moved to 24

Dorrington Street?---And I believe that there's no

25

controversy or contest about those facts Your Honour.

26No.

But then what becomes controversial is you say you moved

27

out of Dorrington Street after a few months and lived out

28

of Bourke Street?---Yes Your Honour.

29We've heard that evidence on Friday?---Thank you Your Honour. 30

So we've completed that daisy loop, that's excellent.

31

While I was living at Nicholson Street with just the one

1.LL:ASC 08/12/08 2Cressy

FTR:22

306

JOHNSON XN

1

Ms Cressy I secured a position with Primelife

2

Corporation.

3Yes?---That was when I began working four days a week with 4

them.

Initially at an hourly rate of $55 an hour.

5

the time I finished up with them in the first quarter of

6

2007 that had grown up to $275 an hour and my time sheets

7

and my tax invoices and work reports show that it was

8

very rare for me to work under 60 hours a week for that

9

company.

10Sixty hours a week?---Very rare, yes.

By

And there was some

11

fortnights where, you know, I would be recording 120, 130

12

hours a week.

13

some work from Primelife under me, but that, that was

14

much later.

15

week in Geelong.

16

full time, part-time with Barwon Water and I would be

17

doing ten, 15, 20 hours of Barwon Water work off site out

18

of Geelong from my little hole in the wall office in

19

Nicholson Street, South Yarra.

20

running good and I'm overlapping and repeating so I've

21

closed that daisy loop as well.

22

and the tax environment was very kind in terms of when I

23

had to pay the tax money (indistinct).

All my time.

I did have staff later doing

At the same time I was spending one day a Under my arrangements I'd ceased to be

So the cash flow was

I had a lot of funding

24Yes?---So I had more than enough money to fund all of these 25

property purchases I did at which Dorrington Street,

26

Point Cook was the first one.

27

two Hoppers on the one day, got the red carpet treatment

28

because it was two purchase, not one and an investor not

29

an occupier - - -

I then signed up for the

30MR DEVRIES:

We've been through this - - -

31HIS HONOUR:

We have - - - ?---I have Your Honour.

1.LL:ASC 08/12/08 2Cressy

FTR:22

307

So I've JOHNSON XN

1

completed that loop, thank you Your Honour.

I think I

2

completed my employment history.

3

Ms Cressy's employment history as employed by me

4

including in the double trump stage where she was working

5

on my properties because she was on my pay roll and that

6

was generally what she was doing.

7

work for me, office administration work.

8

moved to Lisa Court in Hoppers Crossing June 2004, I know

9

I'm repeating.

I've completed

Her mother did some Her mother

The reason is that while I was at

10

Dorrington Street I needed an office area, a home office

11

area.

12

cetera.

13

brought a computer in because I was paying Ms Cressy

14

Senior to do some accounting type work.

15

recording my time sheets for me.

16

had to do and lawyers being lawyers the last thing that

17

you like doing is filling in your time sheet at the end

18

of the day.

19

Senior was processing those for me so she would travel

20

from Lisa Court where she was living to Dorrington Street

21

where her daughter was living.

22

computers there, processing my time sheets.

23

these off in batches once or twice a week when I was

24

coming in, there'd be an envelope with some cash.

25

would write down her hours if she'd worked.

26

providing money for living expenses for Ms Cressy Junior

27

and the children.

28

aspects and she was even doing a bit of cooking for the

29

children as well so there were notes that she would give

30

me of what money she had spent on you know, food and, and

31

outings and that sort of thing for the children.

So I set that up with a desk and computer et Now when I moved out I left that there and I

1.LL:ASC 08/12/08 2Cressy

These were all things I

I certainly (indistinct).

FTR:22

Basically

So Ms Cressy

She would work on the I would drop

She

I was also

Her mother was administering those

308

Both

JOHNSON XN

1

women were driving cars that I provided to them

2

(indistinct).

3

their own petrol but driving my cars nonetheless.

4

mother gave evidence that the first year that she was

5

renting out at Lisa Court even though the rent was only

6

half market, she didn't pay any rent.

7

of paying me the rent money at half market she was

8

putting the money to buy a car.

9

my cars while she was saving.

They were driving my cars.

10That's getting pretty irrelevant.

Paying for Her

She was - instead

She was driving one of

Can I - - - ?---To - - -

11Let's just stick to - - - ?---The relevance is that that is why 12

the bills (indistinct) for Dorrington Street - - -

13Yes I understand?---- - - wasn't really my office but the bulk 14

of the period - - -

15Well the short point is you left an office there because Gail 16

Cressy went there to do your billing?---Exactly.

17

sheet entry yes Your Honour.

18

the way my, my practice, Sutton Johnson - I, I only used

19

that for a couple of years Your Honour to Sutton Johnson

20

as the name for my individual sole practice.

21

name go for a couple of years and practice under my own

22

name, James Johnson because the water authorities that I

23

was working for, after I went part time with Baron Water

24

I began getting jobs from the other water authorities

25

around the state.

26

Johnson.

27

monthly column.

28

anymore and I actually let it lapse, the registration

29

lapse and then I realised that all the people referred to

30

me as Mr GST from Sutton Johnson, a lot of lawyers.

31

realised that I needed to pick it back up for protective

Yes.

Time

That is pretty much

I let the

They all just knew me as James

I wasn't writing for the Law Institute, my

1.LL:ASC 08/12/08 2Cressy

I didn't need the Sutton Johnson name

FTR:22

309

So I

JOHNSON XN

1

purposes.

There was some value in that.

So I did

2

re-register it.

3

of my documents including tax returns.

4

of continuity, you don't get time to go back and correct

5

everything but for a long period of time it was just like

6

a little accounting department in my mind.

7

services provided to me which I continue to use, title

8

searching and that sort of thing.

9

call myself James Johnson or James Johnson (indistinct)

The name Sutton Johnson appears in a lot Just as a matter

I had

Me as me whether I

10

and Johnson so I just let them run.

In about June, June

11

2000 - am I getting this year right?

12

2005 I decided to, rather than practicing as James

13

Johnson and having this little Sutton Johnson, there was

14

a Johnson Johnson continuous, I decided to rename my

15

practice as Johnson Legal and I started promoting that to

16

both my client basis, Johnson Legal.

17

name appears in some of my later tax returns and papers

18

and, and retainer letters.

19

decided, well look I'm doing all right here with the

20

legal practice but a lot of what I'm doing is really

21

commercial work.

22

cent of it was commercial rather than legal.

I think it was late

So that business

At about that time I also

Even for the water authorities 80 per

23Get to the point?---I created a company, a corporate advisory 24

company called Johnson Corporate and my intention was

25

eventually to move out of legal practice into corporate

26

advisory work.

27

realised.

28

sort of a little uncertain whether it was me, Harold

29

James Johnson trading as Johnson Legal, or Johnson

30

Corporate Pty Ltd trading as Johnson Corporate.

31

just started to happen very fast and furious, so those

1.LL:ASC 08/12/08 2Cressy

It was an intention I never fully

I continued to do exactly the same work but

FTR:22

310

Things

JOHNSON XN

1

plans didn't fully mature.

I organised - because I

2

didn't want clients in my home at Bourke Street, just my

3

personality that that was - - -

4You had a serviced office at 140 Bourke Street?---Level 40, 5

thank you Your Honour.

6You told me that on Friday?---The problem I have, Your Honour, 7

is I have told you things via puttage and cross-

8

examination which don't count.

9Don't worry about that?---Thank you, Your Honour. OK.

I may be

10

tripling up, that's the reason.

My relationship

11

with Primelife Corporation continued on that basis upon

12

until - financially up until December, Christmas Eve

13

2006.

14

there through the 10 cent days, the Ron Walker, Robert

15

Discrepancy days, the Babcock and Brown days - - -

Politically I had been there longer, I had been

16That doesn't matter, it's the period of time?---There were less 17

than this many people who had been there longer than I

18

had, despite the fact that I was engaged originally on a

19

three month contract.

20

seven years.

21

need me anymore, so I had to actually encourage them to

22

formally quit my retainer arrangement and that happened

23

just before Easter 2007.

24

two thirds of my earnings.

25

some time to turn around and find alternative sources of

26

income.

27

engaged lawyers that were a bad mistake, that were a big

28

cash train, were not producing and I needed to get rid of

29

them as well.

30

dating - from early 2004 - - -

I'd been there I think six years,

They didn't know how to say they didn't

But that stripped me of over Not unexpected, but I needed

I also had some unproductive staff that I had

What I did at that point, I had been

31We have really got up to your income source at the time of the 1.LL:ASC 08/12/08 2Cressy

FTR:22

311

JOHNSON XN

1

- what the plaintiff says is the end of your

2

relationship?---Yes, Your Honour, I think I've said

3

enough on income sources now.

4It seems to me you would be right?---Yes, in terms of emotional 5

relationships.

Between 2004 and 2005 I was dating a

6

young lady Elizabeth Erasmus.

7

full time relationship.

8

mucks around, Your Honour, we were - - -

I didn't have time for a

I'm not the sort of guy who

9You have told me that many times?---It is an important part of 10

my character, Your Honour.

We would meet and we would

11

have dinner, we would go out two, three times a week for

12

that period, 2004, 2006.

13

during 2006 because she was overseas.

14

over at my apartment, not once.

15

that.

16

other family commitments I wasn't emotionally available.

17

But we were and we remain good friends.

18

seeing each other romantically in late December 2006,

19

early 2007.

20

Hong Kong for May 2007 but I pulled out of that.

21

Elizabeth went by herself, she had family there she was

22

catching up with.

23

young lady, Portuguese background.

I didn't see a lot of Elizabeth She never slept

I was quite keen on

Not to develop too far because I wasn't - with my

We stopped

We did subsequently organise a holiday to

In January 2007 I had met a lovely

24This is Stella?---Yes. 25We heard about this on Friday?---You have heard about this? 26I have heard about Stella from the same person who is telling 27

me now?---Thank you, Your Honour.

Including my desire to

28

learn a bit of Portuguese to speak to her mum.

29Yes, we've heard about that?---Thank you, Your Honour.

I

30

mention one break point in terms of my affairs with Ms

31

Cressy and that was the day I signed the lease on the

1.LL:ASC 08/12/08 2Cressy

FTR:22

312

JOHNSON XN

1

Mallop Street shop in December 1999.

We had another

2

break point in the week after Easter 2007.

3

you describe Ms Cressy's relationship and mine from July

4

2003 up to the relevant break point in 2007, this is the

5

break point.

6

Easter, which was early that year.

7

been talking about - or I had been trying to encourage

8

her to come on a holiday with me to the Whitsunday's so

9

we could talk about things.

Now, however

It was in April, it was the Thursday after Ms Cressy and I had

There was also this

10

possibility in my relationship with Ms Cressy that we

11

might at some stage when whatever the feminine equivalent

12

of sowing your wild oats is, once she had completed that

13

process perhaps we might go into a relationship.

14

that process - the wild oats, it's never actually

15

finished and I believe it's still ongoing, Your Honour,

16

from evidence given in cross-examination from Ms Cressy.

17

Anyway, Ms Cressy turned me down on that.

18

I'm not going to waste my Easter.

19

given some of this evidence on Friday Your Honour.

20You did?---Thank you.

But

So I thought

I believe I may have

So Stella and I went up to Byron Bay and

21

did a diving course, we were half a kilometre off the

22

coast of Byron Bay for most of Easter 20 metres under the

23

water, it was beautiful.

24

Stella, I feel that I fell in love with her on that

25

Easter weekend.

26

from her house into the city to my apartment.

27

my employee who I was on the point of firing and should

28

have done that pre-Christmas.

29

I come up to my apartment, Stella had stayed down in the

30

car park because she didn't want to meet this fellow

31

Andrew.

Came back, I had been dating

On the Thursday Stella and I drove in

Told him to go home early.

So I go up to my apartment.

1.LL:ASC 08/12/08 2Cressy

FTR:22

313

I had rung

Andrew is still in JOHNSON XN

1

my apartment - - -

2Mr Johnson - - - ?---Ms Cressy was in the apartment as well 3

Your Honour.

4Are you getting to the point after a very long digression? 5

---Yes, I am, yes, I am, thank you Your Honour.

6If there were demerit points for irrelevance, you'd be so far 7

in debt it just would be irredeemable.

8

stick to the point, OK?---Yes.

Now, just do

9There are relevant issues that's already flagged with you, you 10

need to address in your evidence?---Yes, Your Honour.

11OK?---I dismissed Andrew.

He went home.

I went down and said

12

goodbye to Stella, came back up.

Ms Cressy and I had a

13

discussion on that day and over the forthcoming days

14

which was along the lines of, "James, I've just come back

15

from spending Sydney with my boyfriend Mark," the first

16

time that Ms Cressy discussed him with me.

17

know, but I'm never going to see him again.

18

break through moment.

19

to be with.

20

to break up with my other boyfriend," who is actually -

21

Mark was from Melbourne, Toorak.

22

with my other boyfriend Zac who is in Sydney.

23

I won't.

24

man I want to spend the rest of my life with.

25

James.

26

that I - I said, "Let me think about it," because I

27

needed to buy some time.

28

put to me even a year earlier, none of us people would be

29

in your courtroom today, Your Honour.

30

was just too late and it was too yucky, the way that it

31

was done.

I had a

I realised you're the man I want

I'm going to break up with Mark.

How about it?"

FTR:22

I'm going

"I'm going to break up

Maybe he's just really a friend.

1.LL:ASC 08/12/08 2Cressy

"He doesn’t

No, maybe

You're the Come on,

Now, I - I - the short answer is

And if that proposal had been

314

But the timing, it

JOHNSON XN

1Well, late, I take it you rejected that suggestion?---Yes, I 2

did reject it, and that resulted in all sorts of

3

subsequent episodes.

4Well, that doesn't matter. 5

It's just simply the - - -?---Which

I don't want to talk about.

6No, and I don't want to hear about it?---And it wouldn't be 7

what you want to hear, Your Honour.

8No, because it's not relevant to what I need to decide in this 9

case?---Yes.

So from that point onwards, Ms Cressy and I

10

have been communicating through court process and

11

accredited family law specialists which is not the ideal

12

way.

13Right, I don't need that either?---Thank you, Your Honour. 14

was no longer working at Primelife.

15

I needed to market.

16

contacts to generate (indistinct)

I

I needed to focus.

I needed to go back to my former

17Well, I think we're at the end point of the relevant evidence, 18

aren't we, in terms of time?---No, Your Honour.

19

relationship with Barwon Water continued up until the end

20

of October 2007, my intention being to move my home to

21

Torquay to work in Geelong, to set up the house for the

22

Cressy children in Altona with Ms Cressy alternately

23

living in the house with the children one week, me coming

24

in the other week.

25

three days a week, earning $3000 a day.

26

It's all I needed to do.

27

parenting for my daughter, and in the process her two

28

half brothers, the younger of which Ms Cressy had always

29

raised, believing that he was my biological daughter -

30

biological son, that Illyana and Skye were full blooded

31

brother and sister.

1.LL:ASC 08/12/08 2Cressy

FTR:22

My

I was going to step down and work That was plenty.

And concentrating on quality

It's not something that I insisted 315

JOHNSON XN

1

on ever required, it was all Ms Cressy's doing, that was.

2

That fell through with the managing director retiring at

3

Barwon Water.

4

appointed and a new broom went through.

There was a new managing director

5I don't think it matters.

All that's, if there's any relevance

6

at all, is that you completed working with Barwon Water

7

in October 2007?---Yes, Your Honour.

8

with Harwood Andrews being tied up with my relationship

9

with Barwon Water, Your Honour, so it's relevant to those

10

counter claims.

11

Honour, is give evidence relevant to my relationship with

12

Harwood Andrews, so it's primarily in respect of my

13

counter claims against Mr Hanlon and Harwood Andrews, but

14

it also will bring in description of the financial

15

circumstances for my properties.

16

to my defence of Ms Cressy's claim, and also relevant to

17

the third aspect, my counter claim against Ms Cressy.

18

OK.

19

shortly after I joined Barwon Water in October 1999.

20

to that point, Barwon Water had never had an internal

21

legal branch or an internal legal manager or internal

22

legal counsel.

23

three things.

24

A full time employee, I was briefed by the then managing

25

director who was there and did not retire until about

26

September 2007.

27

of dollars they were paying in legal fees, the bulk of

28

which were being paid to Harwood Andrews.

What I want to do next, Your

So it's also relevant

My relationship with Harwood Andrews commenced

29MS SOFRONIOU: 30HIS HONOUR: 31

OK.

My relationship

Up

So when I joined them, I was all those I was a branch manager of a branch of one.

My brief was to cut down on the millions

Objection. Yes, I don't see the relevance of this.

You've

articulated specific - well, that's a side of the

1.LL:ASC 08/12/08 2Cressy

FTR:22

316

JOHNSON XN

1

statement, yes, but articulated in your counter claim

2

some claims against Mr Hanlon and Harwood Andrews?---Yes,

3

Your Honour.

4Now, you've addressed them.

There's no question of your

5

relationship with Harwood Andrews, it would seem to me.

6

It's a question of the allegations you made against

7

Harwood Andrews and Mr Hanlon in your counter claim, and

8

you are entitled to give evidence in relation to those

9

matters?---May I point out firstly, Your Honour, that

10

that counter claim and defence were just holding fees.

11No, they aren't.

They are the pleadings.

This is a court of

12

pleading, and they are the claims that I am here to

13

decide?---Your Honour, they were to be - - -

14I cannot decide anything else.

They are the claims that are

15

pleaded?---I have consistently maintained I couldn't

16

finalise my pleadings until after discovery, and the way

17

that the plaintiff has conducted her case, there simply

18

hasn't been discovery.

19Mr Johnson, the 2nd and 3rd defendants by counter claim are 20

here to answer particular claims brought by you against

21

them.

22

this court has always operated.

23

sufficiently good enough lawyer to know that.

24

of the matter is that you cannot articulate claim or try

25

to make claims that border outside those counterclaims.

26MR DEVRIES:

They're the claims in your pleading.

That is how

And I believe you are a The fact

As well, Your Honour, he had the opportunity on

27

Friday to discontinue his proceedings against those

28

defendants.

29HIS HONOUR:

I understand that.

30MR DEVRIES:

And chose not to, and if he's now going to do

31

that, we've wasted an enormous amount of time.

1.LL:ASC 08/12/08 2Cressy

FTR:22

317

JOHNSON XN

1HIS HONOUR:

I don't know what he's going to do, but he wants

2

her to give evidence relating to Harwood Andrews.

3

Ms Sofroniou has correctly objected to what seemed to be

4

entirely irrelevant evidence, and I ruled it

5

inadmissible.

6

to the counterclaims.

7

relevant to the counterclaims that you have pleaded?

8

---Your Honour, I wish to proceed with my counterclaims

9

against um David William Hanlon and Harwood Andrews Pty

10

It doesn't seem to me they relate at all Your entitled to give evidence

Ltd.

11Yes?---And incorporate a legal practice, just like my defence 12

counsel alter ego.

I've been disadvantaged, because

13

proper direction orders were never made, and proper

14

discovery has not been made, proper pleading has not been

15

made because of the way that the plaintiff has chosen to

16

run this case without normal court procedures.

17

that Your Honour has power under the rules to allow a

18

claim to proceed even in the absence of pleadings.

I believe

19No I don't?---I believe that is in the rules, Your Honour. 20I would not do that.

I would allow you to amend your

21

pleadings, subject to any issues of prejudice to the

22

defendants, however this court is a court of pleading, it

23

is a common law court, the proceedings are by way of

24

writ, you managed to deliver a defence and to serve

25

counterclaims against all defendants.

26

claims outside those pleadings.

27

breach of the rules of natural justice to permit you to

28

wander at large and make unspecified claims against any

29

party which I've had no notice?---I believe I have

30

sufficient facts stated in my February 2008

31

counterclaims, on which to ground my counterclaims

1.LL:ASC 08/12/08 2Cressy

FTR:22

318

I will not hear

It would be a matter of

JOHNSON XN

1

against David William Hanlon and Howard Andrews Pty Ltd.

2You have to prove those facts?---I appreciate that, 3

Your Honour.

4Do you understand, pleadings are bear allegations, they have no 5

evidentiary value?---Yes, Your Honour.

May I also say

6

that there are other proceedings in this honourable court

7

on foot, Proceedings 9623 of 2008.

8

in - - -

There is some overlap

9Yes, you've mentioned that, but I'm hearing - - -?---Thank you, 10

Your Honour.

11A different proceeding?---Thank you. 12I'm hearing Proceeding 9665 of 2007?---And I did seek to have 13

the two conjoined Your Honour.

14Yes?---Thank you, Your Honour.

I met the two senior partners

15

of Harwood Andrews, two of them are senior partners of

16

Harwood Andrews.

17

Barwon Water, I was introduced to Richard Anderson - - -

18MS SOFRONIOU:

Certainly within a fortnight of joining

I object, Your Honour.

The circumstances of the

19

first meeting way precedes the matters listed in the

20

counterclaim.

21HIS HONOUR:

I agree with that?---Your Honour, I believe this

22

is relevant because I had an eight year plus relationship

23

with Richard Anderson and Warwick Nelson in Harwood

24

Andrews Pty Ltd.

25

the whole of the period of - - -

They were my external counsel during

26What is the relevance of that to the allegations?

You have

27

made allegations against Harwood Andrews commencing at

28

Paragraph 22 of your counterclaim.

29

allegation relates to the, what you say is Mr Hanlan's

30

registration of a caveat which is not as yet in evidence,

31

as I understand it on behalf of the plaintiff?---

1.LL:ASC 08/12/08 2Cressy

FTR:22

319

That is a - the first

JOHNSON XN

1 2

Your Honour, may - - -

3Secondly, at Paragraphs 27 and following, you have made an 4

allegation against Mr Hanlan and Harwood Andrews, that

5

they were in some way involved in the alleged thefts that

6

you say the plaintiff committed on 16 November 2007.

7

declined to cross-examine the plaintiff in relation to

8

that after she had been cross-examined by Ms Sofroniou on

9

that, when you were given full opportunity to do that.

You

10

They're the matters you're here to address?---

11

Your Honour, I note the time, and I need to um follow up

12

on that service of subpoena for Mr Peter Cochran.

13I don't say things - - -?---And I'd like to refresh on my 14

amended defence and counterclaim, because that's a

15

document in truth I haven't looked at for many months.

16I can't understand why you haven't looked at it.

You brought

17

the three, the defendants to counterclaim here on

18

particularly serious allegations.

19

issue of Briginshaw.

20

Briginshaw principles would apply with full force in

21

relation to the allegations you make to Paragraph 27 and

22

28 of the counterclaim?---And - - -

You talk – you raise

There is no doubt that the

23You are an officer of this court.

You know the seriousness of

24

making allegations like that in a court document when you

25

have not as yet after four and a half days sought to

26

address them.

27

---I do wish to address them, Your Honour.

You seem not now that you wish to do so?

28I will give you 15 minutes to telephone your process server, 29

and to contemplate your counterclaim.

30

3.30, no later?---Thank you, Your Honour.

31

(Short adjournment.)

1.LL:ASC 08/12/08 2Cressy

FTR:22

320

I will be back at

JOHNSON XN

1HIS HONOUR:

Mr Johnson?---Thank you Your Honour.

I'm pleased

2

to report, as defence counsel, I used the break wisely.

3

Mr Stephen Whitiking, I'm not sure on the pronunciation,

4

the process server, will be available in court first

5

thing tomorrow I'm told to give evidence that he did

6

indeed serve conduct money when he served

7

Mr Peter Cochran.

8

evidence.

9

plaintiff's statement of claim as amended on Friday and

10

Your Honour I'll continue with my

I'm looking at Paragraph 15B of the

I'm looking at Paragraph 22 of my counter claim.

11Just a minute?---Which is dated 18 February 2008. 12Yes?---Thank you Your Honour.

I did wish to give evidence of

13

my eight year relationship with Harwood Andrews including

14

first name basis with the current chairman.

15How is that relevant to your counter claim?---Because part of 16

my counter claim is the fact that Harwood Andrews should

17

never have accepted instructions from Ms Cressy - - -

18You haven't pleaded - - 19MS SOFRONIOU: 20HIS HONOUR:

Well I object to that. You haven't pleaded breach of fiduciary duty or

21

any other basis?---Because I had expected the pleadings

22

would not be settled until after discovery and there was

23

no discovery.

The issue was raised in the other - - -

24Mr Johnson I have (indistinct) if you intend, if you wish to 25

make a claim not in your pleadings then you will not be

26

able to do so without an amendment of your pleadings.

27

You have to make proper application to do that and I

28

would only allow an amendment if it did not prejudice the

29

defendant in their defence?---In the circumstances then

30

we should proceed with the pleadings as I drew them in

31

February this year.

1.LL:ASC 08/12/08 2Cressy

FTR:22

321

JOHNSON XN

1Yes?---Thank you Your Honour. 2

I hope not to transgress again

on that point.

3Yes well I expect you not to.

You're an intelligent person.

4

You know exactly what is required to adhere to the issues

5

stated in that counter claim?---I'm flattered Your

6

Honour, thank you.

7

Andrews Pty Ltd having any involvement in these

8

proceedings for the plaintiff was when I received a

9

letter from the Department of Sustainability and

The first I became aware of Harwood

10

Environment informing me that they had imposed a caveat

11

over my property at Altona.

12MS SOFRONIOU:

Well I object to that too because the caveats in

13

question that give rise to the claim is only one type of

14

caveat.

15

behalf of the plaintiff so - - -

16HIS HONOUR:

It's not in respect to the caveats issued on

17MS SOFRONIOU:

Yes I follow that.

18

- - - to that extent there may be some overlap

(indistinct).

19HIS HONOUR:

Yes Ms Sofroniou.

You are correct.

The cause of

20

action such as it is as stated in the counter claim

21

relating to Harwood Andrews relates to one caveat?

22

---Yes Your Honour.

23

Andrews caveat.

The, what I've called the Harwood

24Yes?---Caveat No.AFO66328D. 25Yes?---The affidavit of Mr Hanlon undated but I believe was put 26

on my desk on the 2nd - on the Bar table 2 December.

27

I've already handed up a full copy of the plaintiff's

28

Exhibit A.

29

Your Honour.

30

tender it.

This is another exhibit to that affidavit It's a copy of the caveat.

I'd like to

31Yes?---Thank you Your Honour. 1.LL:ASC 08/12/08 2Cressy

FTR:22

322

JOHNSON XN

1 2#EXHIBIT 22 Caveat No.AFO66328D dated 09/05/07 3 launched by Harwood Andrews Pty Ltd as caveator 4 over the land containing certificate of 5 title volume 4948 folio 514. 6WITNESS:

Thank you Your Honour.

If I may go back to

7

Paragraph 15B of the amended statement of claim of the

8

plaintiff, there's reference to my letter of 29 October

9

2007.

10

With its exhibits it is Exhibit 15 Your Honour as

fully tendered by me this morning, Exhibit 15.

11This is a fax by you to Mr Hanlon of 29 October 2007?---Yes 12

Your Honour that's correct.

13Yes?---With the attachments.

That - - -

14You sent the fax to Mr Hanlon on 29 October?---Yes Your Honour. 15Yes?---At that point in time the totality of the plaintiff's 16

claim against my assets and the totality of Harwood

17

Andrews Pty Ltd's claim against my assets were set out in

18

those two caveats.

19

and the caveat which is Exhibit 16 Your Honour.

The caveat that I've just exhibited

20Yes?---Thank you Your Honour. 21

There were no pleadings

prepared.

22This proceeding that we're in now, Your Honour, had not 23

commenced.

24

Harwood Andrews Pty Ltd trying to explain to them that

25

these are my properties and that Ms Cressy has not

26

contributed anything by way of acquisition, the other

27

form of words, improvement, et cetera to the properties.

28

I am seeking to have the caveat lifted from Gibson

29

Street, at least to buy me some breathing space, some

30

funding so I can continue my generous financial support -

31

not only myself but Julie and the three children, Ms

32

Cressy and the three children, Treece, Skye and Illyana.

33

In that context I wrote particularly a number of letters

1.LL:ASC 08/12/08 2Cressy

I am writing to David William Hanlon and/or

FTR:22

323

JOHNSON XN

1

during late October 2007 to Harwood Andrews.

2

whether I should put them in as exhibits right at this

3

point Your Honour.

4Well, that is a matter for you.

I wonder

If you consider they are

5

relevant to this claim you are entitled to tender them?

6

---May I be allowed to step down to get those?

7Yes?---Thank you, Your Honour. 8MR DEVRIES: 9

Whilst he is doing that, Your Honour, I am

instructed to admit that my client gave the charge to

10

Harwood Andrews as referred to in that caveat and it's

11

also referred to in another caveat and if that does come

12

up I am similarly instructed to admit that charge was

13

given.

14HIS HONOUR: 15

Hopefully that might shorten things a little bit. Thank you.

Well, you say there was a charge given

by the plaintiff to Harwood Andrews?

16MR DEVRIES:

Yes.

17HIS HONOUR:

Dated 8 May 2007.

18MR DEVRIES:

That's correct, Your Honour.

19HIS HONOUR:

Is there a copy of that charge that can be

20

tendered?

21MR DEVRIES:

I can, Your Honour, yes.

22HIS HONOUR:

Just a moment, we will just wait for Mr Johnson

23

who is collecting documents.

Mr Johnson is in evidence,

24

we will just allow him to get his documents together and

25

we can raise - - -

26MR DEVRIES:

He has got a copy of that Your Honour.

27HIS HONOUR:

Yes, he is at the moment at the Bar table sorting

28

his documents out.

29MR DEVRIES:

I am just - - -

30HIS HONOUR:

Conscious of the time?

31MR DEVRIES:

I'm just trying as hard as I can to shorten it as

1.LL:ASC 08/12/08 2Cressy

FTR:22

324

JOHNSON XN

1

much as I can without doing my client any - - -

2HIS HONOUR:

I understand that Mr Devries.

Commendable intent.

3MR DEVRIES:

I suspect there is a large degree of self-interest

4

in that as well, Your Honour?---Your Honour, I'm having

5

trouble finding them, perhaps if I could find them this

6

morning and put them in in the morning.

7HIS HONOUR:

All right?---Thank you, Your Honour.

8While you were looking for those documents Mr Devries to save 9

time has admitted on behalf of his client that a charge

10

was executed by the plaintiff in favour of Harwood

11

Andrews, dated 8 May 2007.

12

charge in this case?---Your Honour, I saw this for the

13

first time as part of Mr Hanlon's affidavit of

14

1 December.

He has offered to tender that

I am quite happy to tender that.

15What is it, the charge is it?---That is the charge apparently 16

Your Honour.

17Thank you. 18

That may speed things alone?---Thank you, Your

Honour.

19I will have a look and see that is tendered through you. 20 21#EXHIBIT 23 Copy of equitable charge 22 by the plaintiff to 23 Harwood Andrews Pty 24 Ltd, dated 8/05/07. 25HIS HONOUR:

Yes?---Your Honour, my defence counsel takes issue

26

as to any legal impact of that document but I believe

27

that is the submission not evidence-in-chief, thank you

28

Your Honour.

29

Hanlon's attention at Harwood Andrews.

30

which was dated 29 October 2007.

31

letter - my objective was to have the caveat withdraw

32

from Dixon Street so that I could do a refinancing to

33

keep the sinking ship afloat.

1.LL:ASC 08/12/08 2Cressy

A series of I think five letters to Mr

FTR:22

325

I sent the letter

Now, attached to that

I attached to that letter JOHNSON XN

1

copies of - there is a settlement summary letter.

2

covered this a little bit this morning already Your

3

Honour and pointed out that I didn't contribute any money

4

into the funding acquisition or improvement of the

5

property.

6

and I got cash back.

7

that if I didn't provide anything for the acquisition,

8

maintenance or improvement of the property, his client

9

most certainly did not either and demonstrably the claim

10

in the plaintiff's caveat for that property was improper

11

and vexatious and should be removed.

12MS SOFRONIOU:

I

My bank funded me 111 per cent or thereabouts I put the proposition that given

I object, Your Honour, on two bases, one in

13

terms of relevance to my client's case, but secondly if

14

that is put forward as I understand it to be as truth of

15

what was asserted, then it's hearsay or it's a

16

conclusion.

17HIS HONOUR:

It's a conclusion and if he is putting it forward

18

as the contents of a letter the letter speaks for itself.

19

So you simply sent that letter, now what happened after

20

that letter was sent?---I did my weekly checks of my

21

titles by my online title search process and I identified

22

a couple of weeks later that the caveat had been removed

23

from Gibson Street.

24

I guess.

Would have been about mid November,

25This is a caveat in respect of Queen Street, wasn't it?---No, 26

no, no.

This was Exhibit - Exhibit 15.

27

caveat, Your Honour.

28

caveat.

Exhibit 16

My letter was about the Exhibit 16

29Yes?---Harwood Andrews never at any time have caveated, or at 30

this relevant time.

31

property, Your Honour.

1.LL:ASC 08/12/08 2Cressy

FTR:22

They only caveated the Altona

326

JOHNSON XN

1Yes?---Yes, Your Honour. 2But you wrote the letter concerning the Caulfield East 3

property?---Exactly, and that caveat - that caveat was

4

withdrawn, Your Honour.

5

no explanation, no courtesy of notice, either when the

6

caveat was put on or when it was removed.

7

left to find out for myself.

I was given no correspondence,

8Yes?---By my own careful investigation. 9

I was simply

That opened the door

for me to do the refinancing of Caulfield, and I talked

10

about that in this morning's evidence, Your Honour.

It

11

appears what happened at the same time was that Harwood

12

Andrews withdrew the caveat that they had taken, and did

13

that charge document that I saw for the first time last

14

week over my Altona property.

15Yes?---I had no knowledge of that until in about December 2007 16

I put together contracts for the sale of the property.

17Of Queen Street?---Yes, yes.

I had attempted other discussions

18

which I think I'm not allowed to discuss with Your

19

Honour.

20

back.

21

to try to work out what to do, I filed an 89A application

22

objecting to all of Ms Cressy's caveats against all of my

23

properties, separate 89A applications for each of them,

24

but I did not put an application in in respect of the

25

Queen Street property.

26

and I had a discussion with Ms Cressy to this effect as

27

early as July 2007, "Look, I understand you're scared.

28

You want some security.

29

time being and we'll talk about it.

30

keep it if you feel comfortable.

31

please because I need to be able to sell some properties

I put out offer waves, but nothing could come There was just silence, Your Honour.

1.LL:ASC 08/12/08 2Cressy

FTR:22

Desperately

My negotiating stance was that,

Keep the one at Altona for the

327

It's not right, but

Drop the other caveats

JOHNSON XN

1

to keep some properties, or things are going to get very

2

very desperate."

3

conversation, "Well, no, I'm not going to do that because

4

I've been told that once I remove a caveat, I can never

5

put it back again."

6

conversation.

7

the properties.

8

sale for the Altona property because things are starting

9

to get grim.

Ms Cressy responded in that

That was the gist of that

So I put my 89A applications in for all I then thought, well, I'll negotiate a

That's the one with the most equity in it.

10

That's the one to sacrifice to keep the other properties

11

in place.

12

that, Your Honour.

And I was offering - sorry, I can't talk about

13OK?---So in late December through the agent I bought the 14

property through, Altona for $500,000 in the February

15

2006 contracts, I signed a contract to sell the property.

16

I think it was dated 22 December 2007, a 60 day

17

settlement for $770,000.

18MS SOFRONIOU:

Well, I object to that evidence in that form,

19

Your Honour.

20

document that I don't understand to be before the court.

21HIS HONOUR: 22

It's an assertion of the contents of a

Yes?---I would like to tender that document, Your

Honour.

23HIS HONOUR:

Yes, certainly?---Your Honour, this is a document

24

that I did disclose pursuant to the orders that Mr

25

Justice Whelan made on 12 March 2008.

26Yes?---Those orders require me to disclose such documents as 27

are in my possession regarding three of my properties.

28

From memory, it was Altona.

29Well, I don't hear Ms Sofroniou saying you haven't but - - -? 30

---Point Cook.

31She was objecting to you giving oral evidence as to the 1.LL:ASC 08/12/08 2Cressy

FTR:22

328

JOHNSON XN

1

contents of a written document?---Yes, the simple point I

2

wanted to make to close it out, Your Honour, is that

3

those orders Mr Justice Whelan made only because I

4

consented to them.

5They are irrelevant.

OK.

Stick to the point, and we'll finally get

6

to the end of your evidence one day?---I have a large

7

bundle of documents, Your Honour, which I provided as

8

part of that process.

9That's irrelevant.

As I understand it, you are seeking to put

10

in evidence a contract which you say you entered into to

11

sell the Altona property in late 2007.

12

give oral evidence of the contents of that document.

13

Ms Sofroniou has correctly objected?---I - I didn't.

You started to

14And you should tender the contract because you say you've got 15

it there?---I'll do them piecemeal, Your Honour.

16

you, Your Honour.

17

think, 22 December 2006.

Thank

This is the contract of sale dated, I

18Six or seven?---2000 and - yes, Your Honour, 2000 and - 2007, 19

Your Honour.

20Thank you, can I have a look? 21MS SOFRONIOU:

Thanks again.

Yes, thank you, Your Honour.

Did you see this? I'm not saying

22

it's relevant to any case against my client.

23

me however that - - -

24HIS HONOUR:

Well, I will receive it as an exhibit.

25MS SOFRONIOU:

Subject to objection if you would Your Honour.

26HIS HONOUR:

Yes, well, subject to the questions of relevance

27 filed. 28 29#EXHIBIT 24 30 31 32 33 34MR DEVRIES:

It escapes

Copy contract of sale of the property at 166 Queen Street, Altona, between the defendant as vendor and David Peter Cudmore and/or nominee as purchaser dated 24/12/07. If I could also reserve the right - - -

1.LL:ASC 08/12/08 2Cressy

FTR:22

329

JOHNSON XN

1HIS HONOUR:

Yes, you're both now.

2MR DEVRIES:

- - - to object at a later stage to its relevance?

3HIS HONOUR:

Yes?---Your Honour, I'd - I believe that I am

4

giving evidence relevant not only to my defence to

5

Ms Cressy's claim, but also to my counterclaim against

6

her and my counterclaim against - - -

7HIS HONOUR:

Yes.

Can we just proceed?

I've received it at

8

the moment?---Thank you Your Honour?---On 21 - oh.

OK.

9

Your Honour, I wrote to Ms Cressy via David Hanlon at

10

Harwood Andrews advising - sorry, I'll start again.

11

at about the same time I entered into contracts for the

12

sale of the house that I was occupying which was

13

Dorrington Street, in Inverloch Drive, Point Cook, and I

14

would like to exhibit those contracts as well please, all

15

of which have been disclosed to the parties pursuant to

16

Mr Justice Whelan's orders.

17Just tender the document?---Thank you Your Honour.

Um,

This is the

18

contract of sale dated 16 January 2008 for the sale of

19

2 Dorrington Street, Point Cook.

20MS SOFRONIOU: 21

So, I object to it on the ground of relevance in

respect of my client's (indistinct).

22HIS HONOUR: 23

Yes.

Well its not pleaded against

your client as far as - - -

24MS SOFRONIOU: 25

Thank you.

Indeed, and there may be residual relevance, but

I put that object on record in case it's - - -

26HIS HONOUR:

Well, I assume this is going to the claim against

27

the - the counterclaim against the plaintiff?---All - all

28

(indistinct) by counterclaim Your Honour.

29No?---Because it's evidence against all three. 30You haven't pleaded a claim in relation to the Dorrington 31

Street property against Harwood Andrews?---Because when

1.LL:ASC 08/12/08 2Cressy

FTR:22

330

JOHNSON XN

1

the pleadings were drawn up on 18 - - -

2I have - I'm not going to get into this argument with you 3

again.

4

will be - I have told you that your claim is restricted

5

to what's in the pleading.

6MS SOFRONIOU:

You're pleadings are in black and white.

You

Your Honour will note that Paragraphs 15 and 20

7

of the counterclaim are running that argument respecting

8

caveats on the other properties.

9HIS HONOUR: 10MS SOFRONIOU:

Yes.

11

And the plaintiff's caveat over the Altona

property against the plaintiff.

12HIS HONOUR: 13MS SOFRONIOU:

Yes.

14

We don't understand Harwood Andrews to be the

subject of that complaint.

15HIS HONOUR: 16MS SOFRONIOU:

They are not.

17HIS HONOUR:

Thank you. I can't pick up a date of that contract?---I

18

believe it's 16 January.

19

2008 Your Honour.

It's between 14 and 16 January

20Yes, we'll the document itself is undated, but that will 21

nonetheless be Exhibit 25?---Sorry Your Honour, second

22

page of the particulars schedule.

23

- - -

24Sorry?

"Day of sale" is the

Are you sure you've tendered all - I only have one page

25

of the particulars here?---Does it finish with a

26

settlement - purchaser's finance, day of sale at the

27

bottom?

28No.

Just hand up the document you've got there?---This is the

29

analogous one for the land, 7 Inverloch Drive, Point

30

Cook.

31Sorry?---This - that's the - - 1.LL:ASC 08/12/08 2Cressy

FTR:22

331

JOHNSON XN

1No, well this is the document that I - this will be 2

Exhibit 25?---Yes.

The question is is it complete?

3Well, what I'll do is I'll have it exhibited, marked as exhibit 4

and perhaps if it'd be pulled together and then we can

5

check later whether that's - - -?---Yes.

6- - - the complete exhibit. Do you follow?---Yes. 7 8#EXHIBIT MFI25 - (For identification) Contract of sale of 9 the property at 2 Dorrington Street, 10 Point Cook by the defendant as vendor to 11 Mr Xinji Zhang and Zhuqin Mo as 12 purchasers dated 16/01/08. 13HIS HONOUR:

You're now tendering another contract?

14

right?---Yes.

15

property, 7 Inverloch Drive.

Is that

The second part of the Point Cook

16I would repeat my objection which falls under Your Honour's 17

(indistinct) for the previous contract of sale.

18HIS HONOUR: 19

Well this is tendered against the plaintiff?

---Um.

20Which property is this?---That's the contract of - - 21Inverloch Drive?

Yes?---Yes Your Honour, yes Your Honour.

22Well this document seems fairly incomplete, but what there is 23 of it will be Exhibit 26. 24 25#EXHIBIT 26 Part of the contract of sale of the 26 property at 7 Inverloch Drive, Point Cook 27 by the defendant as vendor Xuan Ling Tan 28 dated 11/01/08. 29MR DEVRIES: 30

Your Honour, I haven't asked to see any of those

exhibits.

31HIS HONOUR:

Yes.

32MR DEVRIES:

But If I can mention now in case we run out of

33

time at quarter past four, I'll be seeking leave for my

34

instructors to have overnight all of the exhibits for

35

today.

36HIS HONOUR:

Yes.

1.LL:ASC 08/12/08 2Cressy

FTR:22

332

JOHNSON XN

1MR DEVRIES:

On the same undertaking that I'm instructed to

2

give on their behalf that they'll return to court before

3

the start of proceedings tomorrow.

4HIS HONOUR:

Certainly, yes.

5MR DEVRIES:

Mr Devries, and I'll also permit Ms Sofroniou to

6

have access to those exhibits?---Your Honour, um just

7

foot noting that these are among the many documents that

8

I'd disclosed to the parties in accordance with

9

Mr Justice Whelan's orders of 12 March.

10

So they were

disclosed in late March, early April this year.

11MR DEVRIES:

No issue was taken with that.

12HIS HONOUR:

Let's just proceed with the evidence Mr Johnson?

13

---Um, what I discovered in preparing those contracts for

14

the sale of Queen Street, Altona, was the caveat had

15

disappeared.

16

so that the only caveat on title was Ms Cressy's title.

17HIS HONOUR:

The Harwood Andrews caveat had disappeared,

When was the Harwood Andrews caveat withdrawn?

18

---Um, not fully researched it, but um until last week

19

when I saw Mr Hanlon's affidavit of 1 December, unfiled

20

in these proceedings.

21

November or the first week and a bit of December 2007.

22HIS HONOUR:

I could only pinpoint the date as

You say it's either November 07 or early December

23

07?---Yes.

24

sworn, but not filed in these proceedings dated 1

25

December 2008, there is explanation and there are copies

26

of withdrawals of caveats.

27

because I'm quite happy to accept that evidence as to how

28

the caveat was withdrawn.

29

that Harwood Andrews um prepared two withdrawals of

30

caveat, one for Ms Cressy, one for themselves, put the

31

Gibson Street title details down on both of them, and

1.LL:ASC 08/12/08 2Cressy

Now in the affidavit that Mr Hanlon has

FTR:22

And if I may paraphrase that,

It appears what happened is

333

JOHNSON XN

1

filed both of them.

2

withdrawal from Ms Cressy's caveat of course went through

3

as intended, um but the caveat for Harwood Andrews of

4

course hit an impediment, because their caveat instrument

5

exhibited.

6HIS HONOUR: 7

That um caveat, the partial

Um, 23 - - -

It was over Queen Street, Altona?---And solely

Queen Street.

8Yes?---Here was a withdrawal of caveat instrument relating – by 9

their interest relating solely to Gibson Street.

So it

10

appears that someone in the Titles Office, or one of

11

their agents - - -

12I'm not worried what appears, but you say in any event, that 13

that caveat was withdrawn early – late November or early

14

December?---It, it seems now I'm informed by reading

15

Mr Hanlon's affidavit over the weekend, that um, that

16

both withdrawals of caveat went through the same time.

17

So I have, which I'm quite happy to tender, and this may

18

assist Ms Sofroniou later, this is a letter provided to

19

me in the manner I've explained from Harwood Andrews to

20

their titles agents affecting those two withdrawals of

21

caveats.

22MS SOFRONIOU:

It sounds from what I have heard Your Honour,

23

that my friend may be conceding that it was an accidental

24

withdrawal in the circumstances that he states.

25HIS HONOUR: 26

I think he might be saying it's an accidental non-

withdrawal,

27MS SOFRONIOU: 28HIS HONOUR:

Yes. An accidental abortive withdrawal, but there's a

29

letter, there seems to be a letter from Harwood Andrews

30

to Axis Searching and Settlements, 1 November 2007,

31

enclosing withdrawals of caveats, both in relation to the

1.LL:ASC 08/12/08 2Cressy

FTR:22

334

JOHNSON XN

1

same property.

2MS SOFRONIOU: 3HIS HONOUR:

Yes, Your Honour.

4MS SOFRONIOU:

If you - - -

5HIS HONOUR:

Gibson. Gibson, which I assume is the – he's gone and got

6

the title particulars.

7

Street property, 10946, Folio 643.

8MS SOFRONIOU: 9

to.

I'll assume that's the Gibson

Then writing that Your Honour can have regard

There are a couple of titles as I understand it that

10

are on that, one in type and one in handwriting as it

11

were.

12HIS HONOUR: 13MS SOFRONIOU:

Right.

14

I'll just see if Your Honour's looking at the

document that I think Your Honour is.

15HIS HONOUR: 16

There's two withdrawals of caveats dated 1

November 2007.

17MS SOFRONIOU: 18

Thank you, I'm sorry, I was having regard to a

different document.

19HIS HONOUR: 20

I withdraw that.

But this is essentially the evidence of an

abortive attempt to withdraw.

21MS SOFRONIOU:

Yes, Your Honour.

22HIS HONOUR: I'll 23 24#EXHIBIT 27 25 26 27 28 29MS SOFRONIOU: If 30HIS HONOUR:

make that anyway Exhibit 27. Letter of Harwood Andrews to Axis Searching and Settlements 2007 together with the attached two withdrawals of caveats and remittance advice. it please Your Honour.

That would have been ineffective to withdraw the

31

caveat over Queen Street?---No, it was effective,

32

Your Honour.

33

Andrews caveat was withdrawn.

The caveat, the caveat - the Harwood

34That was - it was those type of particulars I've just read out, 1.LL:ASC 08/12/08 2Cressy

FTR:22

335

JOHNSON XN

1

the Queen Street title particulars were they?---The

2

handwritten ones were yes.

09 something 4H Your Honour.

3Well I didn't see any handwriting.

But when - - - ?---I'm

4

sorry, that's coming next Your Honour I'm sorry.

5

two exhibits away.

6

consenting to some sort of accidental withdrawal.

7

as defence counsel says well I'm pointing out that there

8

was an accident but some accidents are without fault,

9

some are with fault.

10

We're

But my learned friend said I might be My -

There's a certain standard of care

that should be applied to caveats in title dealings.

11Let's just stick to evidence?---The - - 12Mr Johnson you want to tender another document?---I do indeed. 13

This is - - -

14Well done?---Thank you Your Honour. 15What is it?---Again provided to me in a manner - all of these 16

documents are provided to me in that same way.

17You've said that on 14 occasions - - - ?---Yes Your Honour. 18

Well this is the fifth time I think Your Honour.

19

Your Honour.

20

asking their access search agents what happened.

Five

This is a facsimile from Harwood Andrews

21Doesn't make a lot of sense to me but I'll receive it as an 22

exhibit.

It may be the hour, it may be the strain of the

23

case, it may be the time of the year but it doesn't make

24 much sense. 25 26#EXHIBIT 28 Facsimile from David Hanlon to access 27 search dated 05/03/08. 28WITNESS:

One's a transmission page Your Honour.

29HIS HONOUR:

Right?---I tender as Exhibit 29 was the Harwood

30

Andrews caveat withdrawal that simply didn't need to be

31

prepared with the handwritten alteration.

32Do we need to go through this lengthy preamble? 1.LL:ASC 08/12/08 2Cressy

FTR:22

336

If it's common JOHNSON XN

1

ground that the caveat was withdrawn, isn't it sufficient

2

to simply get to that stage?---It, it was the impression

3

of the caveat being withdrawn.

4

was beginning to appreciate, understand and accept my

5

impassioned writings to him that this letter had no

6

claim - - -

I thought that Mr Hanlon

7You see common ground when the caveat was withdrawn? 8

---Ms Sofroniou?

9MS SOFRONIOU:

I believe so Your Honour.

This - the exhibit

10

that Your Honour has in Your Honour's hands is the

11

final - - -

12HIS HONOUR:

It's the final chapter in this - - -

13MS SOFRONIOU: 14HIS HONOUR:

- - - piece of the puzzle as I understand. - - - torture.

15MS SOFRONIOU: 16

Your Honour will see that the title has been

changed.

17HIS HONOUR: 18

It has.

Do I take it that the handwritten title,

the Particulars 4948514 that's Altona is it?

19MS SOFRONIOU: 20HIS HONOUR:

Yes Your Honour.

21MS SOFRONIOU:

Thank you very much. And to that extent given that my learned - the

22

witness has tendered that we are in agreement about the -

23

as I understand it, about the content of those exhibits.

24HIS HONOUR: 25MS SOFRONIOU: 26 27#EXHIBIT 29 28 29 30

Thank you very much.

31WITNESS:

Thank you Your Honour. Document of the withdrawal of caveat in respect of the land of certificate of title Volume 4948 Folio 514 dated 01/11/07.

Thank you Your Honour.

The effect of those two

32

withdrawals of caveat as processed by the titles office

33

in my mind was that my writing (indistinct) to David

1.LL:ASC 08/12/08 2Cressy

FTR:22

337

JOHNSON XN

1

Hanlon & Harwood Andrews were beginning to make sense to

2

him and that we could resolve this matter quietly without

3

resort to any further legal process.

4MS SOFRONIOU: 5HIS HONOUR:

Well I object to that - - His thinking is irrelevant?---Your Honour I came

6

to court - so the next thing that happened was the issue

7

of a summons in January.

8

Harwood Andrews in January, I think it was 21 January.

9

I've just got so many paper - perhaps I can find it

10

I wrote to David Hanlon at

overnight.

11(Indistinct) to do?---Thank you Your Honour. 12Sort out your papers overnight on these issues?---Yes. 13Yes?---Advising the status of all of my properties that 14

Dorrington - - -

15MS SOFRONIOU: 16HIS HONOUR:

Well I object Your Honour. Yes.

17MS SOFRONIOU: 18HIS HONOUR:

The latter - - -

- - - can speak for themself - - Yes?---Thank you Your Honour. Thank you Your Honour.

We'll do that in

19

the morning.

The next step in

20

the legal process was a summons and we were in the

21

practice court before Justice Mandy in late January 2008.

22

The next step is that, that hearing was adjourned.

23Whose summons was that?---The plaintiff's summons Your Honour. 24Yes?---That was adjourned until the - I believe it was 25

18 February before Mr Justice Whelan.

On that occasion

26

it came clear from submissions that I made from the Bar

27

table or discussions outside of the court door that I

28

informed Harwood Andrews and David Hanlon and

29

Ms Sofroniou I believe was present on that occasion that,

30

that Harwood Andrews' caveat had been withdrawn from

31

Altona.

The next thing I was receiving a letter from the

1.LL:ASC 08/12/08 2Cressy

FTR:22

338

JOHNSON XN

1

Department of Sustainability and Environment claiming

2

that another caveat had been put on by Harwood Andrews by

3

the same party over the same land to protect the same

4

interests.

5

identical, they're printed off the same machine, the same

6

document.

7

are all different and the date is 6 March 2008.

8

to tender this which is the replacement caveat referred

9

to in my counter claim, AF709814N.

It looks - if you measure them up they're

The only differences are that the signatures I'd like

10So that was lodged with the Titles Office was it?---Yes Your 11

Honour.

It's registered and I believe it's still hanging

12 on the title Your Honour. 13 14#EXHIBIT 30 Copy of caveat dated 06/03/08 by Harwood 15 Andrew Pty Ltd in respect to the land of 16 certificate of title Volume 4948 Folio 17 514. 18WITNESS:

Thank you Your Honour.

And as - I believe as a

19

submission in my alter ego and other legal personality as

20

defence counsel I will be submitting that Mr Hanlon

21

prepared and signed and had that instrument, Exhibit 30

22

registered in the full knowledge that in doing so he was

23

in breach of s.91 - - -

24MS SOFRONIOU: 25

Act.

26HIS HONOUR: 27

Well, I - - -?---Sub-s.4 of the Property Law

Well, that will be your submission in due course?

---Thank you.

28We're actually at the moment in the middle of evidence?---In 29

evidence, I might - - -

30Or we should be?---I might short cut things a little bit by 31

saying that that property was sold, Altona.

32

under my contract of sale did not proceed.

33

frustrated at the $770,000 value.

1.LL:ASC 08/12/08 2Cressy

FTR:22

339

The sale It was

That should have JOHNSON XN

1

happened in February 2008.

2MS SOFRONIOU:

Well, I object to that evidence being given in

3

that form, Your Honour.

4

part and - - -

5HIS HONOUR: 6

The frustrated part, the price

Well, you will need to give - - -?---The contract

of sale, Exhibit No. - it's - - -

7I think it's - - -?---24, it shows the day of sale. 8Yes?---Which I think was 22 February 2008. 9Yes?---The sale didn't occur on that date, Your Honour. 10

purchaser withdrew from the contract.

11

ownership situation remained like that up until the

12

property was auctioned by my mortgagee.

The

The title

13Well, at that stage there was no caveat on the property?---The 14

caveat - there's a string of caveats still there.

15

auction sale hasn't yet settled, Your Honour.

That

16But the Harwood Andrews - there was no Harwood Andrews caveat 17

on the property at the end of February 2008?---No, there

18

wasn't, but Ms Cressy's caveat was still there.

19I see?---Yes, and then in - a couple of weeks later, Harwood 20

Andrews's replacement caveat came on, Exhibit 30, Your

21

Honour.

22

mortgage payments at this stage were about $1000 a week.

23

So we've got ten months of 40 - 40 - $40,000 more in

24

interest payments.

25

property was sold at auction by mortgagee.

26

on, I believe, 8 November, and the daily newspaper for

27

10 November, the only information I have received even

28

from my bank as to the sale is a public advertisement

29

that it was sold at Altona, 166 Queen Street, 756 square

30

metres, brick.

31MR DEVRIES:

So after ten months of mortgage payments, the

The - and it's not contested.

The

It was sold

This is hearsay, Your Honour.

1.LL:ASC 08/12/08 2Cressy

FTR:22

340

JOHNSON XN

1HIS HONOUR:

Yes, yes?---$626,000.

2Yes, well, I'm sorry, it is hearsay.

You weren't at the sale?

3

---Your Honour, amongst the orders that Mr Federal

4

Magistrate O'Dwyer made, if Ms Cressy had been at the

5

sale, I would have been in breach of those orders for

6

being within half a kilometre of her or the children.

7

The answer is no, I wasn't at the sale.

8Is there any issue about the property having been sold by 9

mortgagee on that date?

10MS SOFRONIOU: 11

No, Your Honour.

It's hearsay.

relevance to our case anyway.

12HIS HONOUR:

No, I understand that.

13MR DEVRIES:

We have no detail.

14

It's of no

We know it's been sold, but

that's as much as we know.

15HIS HONOUR:

You don't know the detail, but do you know it was

16

sold by the mortgagee at auction on 8 November?

17

accept that as a fact?

18MR DEVRIES:

I accept it was sold.

Do you

I can't either agree or

19

disagree with the date or how it was sold because I've

20

got no instructions on that?---Your Honour, I believe the

21

transcript will show that Mr Devries led in his opening

22

to the fact that it was sold by mortgagee for $627,000.

23HIS HONOUR: 24

I think you're right on that one?---And I believe

- I believe Ms Cressy also gave evidence.

25MR DEVRIES:

I said it was sold.

26HIS HONOUR:

Is there any issue as to this?

27MR DEVRIES:

I said it was sold, Your Honour, and that we

28

believe that at the end of the day there might be a

29

certain figure above what I think I said, $48,000, but I

30

didn't give any more particulars than that because my

31

instructor didn't go beyond that, Your Honour.

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1HIS HONOUR:

Well, you might make inquiries over the break, but

2

if in fact it was sold, and it was sold by

mortgagees

3

auction, then it would seem to be appropriate that your

4

side admit that.

5MR DEVRIES:

I'll certainly make those inquiries, Your Honour.

6HIS HONOUR:

Yes.

7MR DEVRIES:

But at this stage I can't - - -

8HIS HONOUR:

If it's a fact, it's a fact.

9MR DEVRIES:

Yes, I'm not trying to be difficult, Your Honour.

10HIS HONOUR:

No, well, if you could confirm that, and you may

11

be in a position to concede that without requiring the

12

matter at considerable further expense to be the subject

13

of any further delays, so that a formal precedent

14

relating to that sale can be put together.

15MR DEVRIES:

If Your Honour pleases.

16HIS HONOUR:

It is usual for those sorts of matters to be

17

admitted.

18

$103,000 with contested costs of 55."

19MR DEVRIES: 20

Yes, I'm sorry.

I'm not being deliberately

difficult.

25HIS HONOUR: 26

Well, it sounds like it was a mortgagees sale.

Confirm it over the break.

23MR DEVRIES: 24

Yes, that's all the information I have, Your

Honour.

21HIS HONOUR: 22

I notice my notes were, "Sold, balance

No, I follow that.

You can confirm that over the

break.

27MR DEVRIES:

I will, Your Honour.

28HIS HONOUR:

This case is proceeding far too slowly and I am

29

concerned as to when it, if ever, it will complete.

30

think that what we'll have to do is sit longer hours to

31

get it finished.

1.LL:ASC 08/12/08 2Cressy

I

If we start at ten o'clock tomorrow, is

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JOHNSON XN

1

that inconvenient to anyone?

2MR DEVRIES: 3

Not to me, Your Honour?---I have Mr Whitiking

coming in at 10.30, Your Honour.

4HIS HONOUR:

Well, if he comes in at 10.30 we will interrupt

5

your evidence.

We'll at least get half an hour of

6

evidence.

7

we start with evidence.

8

wasting?---Thank you, Your Honour.

Now, I expect you at ten o'clock tomorrow, and We don't have any more time

9You don't need an arm wrestle with the judge each break. 10

All

right?---Yes.

11Now, my associate tells me some documents in answer to 12

subpoenas sought on behalf of the plaintiff to the

13

Commonwealth Bank have been produced to the Prothonotary

14

and thus to my associate.

15MR DEVRIES: 16

Your Honour?

17HIS HONOUR: 18

Yes, we'll release them to the plaintiff's

solicitors on the usual undertaking.

19MR DEVRIES: 20

Could my instructors also have a look at those,

And we'll make them available to my learned friend

as she wishes.

21HIS HONOUR:

Yes?---Learned friends, plural, Mr Devries.

22Yes, Mr Johnson too. 23MR DEVRIES: 24

I would prefer not to have any face to face

dealings with Mr Johnson, Your Honour.

25HIS HONOUR:

Well, it may not be necessarily face to face.

26

Your instructor can hand them over to him, I would hope.

27

If I release them, he's entitled to have a look at them.

28

Now, you'll be giving an undertaking to return them

29

properly to the court?---Most definitely, Your Honour.

30Yes, and I would expect - - -?---My feelings are hurt, Your 31

Honour, by the comments by Mr Devries, but of

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JOHNSON XN

1

course - - -

2Well, I'm not here as a soother of feelings.

I'd expect

3

everyone to behave with decorum in their dealings with

4

each other.

5

my behaviour that - that is - - -

6MR DEVRIES:

You are an officer of this court?---It's not

My instructors, Your Honour, will bring them back

7

here, all of the documents at court at ten tomorrow.

8

presume that that's not going to inconvenience the court

9

staff.

10HIS HONOUR:

I

Right, and then there will be someone here on

11

behalf of the court to hand them over to you?---I should

12

be here, Your Honour.

13Yes, the matter will be in the list for 10.30 but we will in 14

fact resume at ten o'clock tomorrow, and that will hold

15

for the next couple of days, and hopefully we will

16

complete this case Wednesday?---I think you are unduly

17

optimistic, with respect, Your Honour.

18I'm used to common law cases.

All right, ten o'clock tomorrow.

19<(THE WITNESS WITHDREW) 20ADJOURNED TO TUESDAY 9 DECEMBER 2008

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