Timothy Swan 43766 Tim Swan - Clu 15 - Nsw Ucpr Form 40 Affidavit Markup
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Form 40 (version 1) UCPR 35.1
AFFIDAVIT OF Joyce Judd 11 May 2009 COURT DETAILS Court
District Court of New South Wales
#Division
Civil
#List
General
Registry
Sydney
Case number
3777/05
TITLE OF PROCEEDINGS First plaintiff
Joyce Judd
Second plaintiff
Margaret Judd
First defendant
Barry Cousins
Second defendant
Maria Cousins
FILING DETAILS Filed for
Joyce Judd First plaintiff
#Filed in relation to
Plaintiff’s Notice of Motion for Summary Judgment
#Legal representative
Lawrence Law Law & Co
#Legal representative reference
LL:2345
Contact name and telephone
Lawrence Law (02) 9965 7000
2
[on separate page]
AFFIDAVIT Name
Joyce Judd
Address
11 Barker Close Hornsby NSW 2077
Occupation
Chef
Date
11 May 2009
I say on oathe 1
I am the first plaintiff.
2
On or about 11 September 2007 my mother and I had a conversation with Barry Cousins (Cousins). Cousins had indicated previously that he wanted to borrow money from us. The conversation was as follows: Cousins said words to the effect of: “I need some money to help pay for my legal fees. It would be great if you [my mother and I] could take out a mortgage on your home and lend me the money. I will pay the mortgage payments until I sell my house next December. When I sell the house, I will pay the balance of the mortgage in full.” I said to Cousins: “We will lend you the money, but I want to have the agreement put in writing. We will only lend you the money if we are able to put a caveat on your property.” Cousins said: “Ok.” I also said to Cousins: “I would also like your mother to sign the agreement as guarantor. Can you speak to her about this, and make sure she understands what he responsibilities will be.” Cousins said: “Ok, I will arrange for that as well.”
3
On or about 11 November 2007 I went to see Cousins and his mother, Maria Cousins, at his home at 25 Bass Road Orchard Hills NSW 2xxx. I took a copy of an agreement (the Agreement) I had my solicitor draw up with me. A copy of the
3
Agreement is annexed and marked Annexure A. When I showed Cousins the document he said: “I am happy to sign anything. Where do I sign?” I said to Cousins: “You should read the document before you sign it. Your Mum also needs to sign it and she needs to be sure she understands what the agreement means and what her liabilities are.” 4
Cousins read the Agreement and signed it. Maria Cousins also signed the Agreement. I then signed the Agreement. My mother, Margaret Judd, signed the Agreement.
5
On or about 18 November 2007, a week after we all signed the Agreement, the loan was approved by the Commonwealth Bank of Australia and was drawn down. On that day, Cousins came to the Commonwealth Bank branch at Chatswood to collect. The bank officer provided Cousins $40,000 in cash, $60,000 by way of cheque, and charged $1,200 in fees. That adds ups to $101,200.00, the total amount of the loan provided in part A of the Agreement. The bank offer also provided Cousins with a repayment book so that he could make the payments as agreed to under Clause 1 of the Agreement.
6
On or about 15 December 2008, Cousins stopped making payments. Evidence of the payment history is provided by the repayment book, a copy of which is annexed and marked Annexure B. (you don’t have this book) The last deposit entry made by Cousins was on is dated 15 December 2008.
7
On or about 11 February 2009 Cousins phoned me to discuss his obligations under the Agreement. Cousins said: “Things are tight, and I have no money. I have to move out of my house, as I can no longer make the mortgage repayments on it. I have a place to rent though. I won’t be able to make the payments on your loan to the Commonwealth Bank either.” I said to Cousins: “You signed an agreement that you would make those mortgage repayments. You told me you would be able to continue to pay them.” Cousins said:
4
“I cannot afford to pay them any more. You will have to pay them. I will bring the payment book over to you this afternoon so you can make the payments.” 8
Cousins called me back an hour later on 11 February 2009 and said: “I can’t bring the payment book around now, I’m too busy.” I said: “A payment needs to be made on Monday, I have to have the book.” He said: “That’s not my problem.”
9
We made arrangements for my taxi driver, Patrick Smith, to collect the payment book. Patrick Smith collected the book and returned it to me on or about 4pm on 11 February 2009.
10
The payment book shows that I started making payments from Monday 16 February 2009.
11
Neither Cousins nor Maria Cousins have made, or offered to make, payments as required under the Agreement.
12
Part 2 of the Agreement provides that when the borrower defaults on payments, the balance of the amount provided to the borrower under the Agreement and any other monies owed fall due and payable immediately._ - that is a submission that you will make at the hearing
13
Part 4 of the Agreement outlines the guarantor’s responsibilities to ensure the borrower performs his obligations under the Agreement.- that is a submission that you will make at the hearing
14 15
The defendant’s offer to pay $50.00 per month in paragraph 5 of the Defence filed on 5 April 2009 is not accepted by the first plantiff. Not necessary One of the elements that has to be proven is that the plaintiff believes that the defendant has no defence. You will need to include a statement to this effect, by the plaintiff in this affidavit.
5
SWORN at
2 Chandos Street St Leonards NSW 2065
Signature of deponent Signature of witness Name of witness
Lawrence Law
Address of witness
2 Chandos Street St Leonards NSW 2065
Capacity of witness
Solicitor
Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.
Some general comments:I haven’t double checked them, so please check that your dates are all correct? As per the instructions given in the “Important notes” on the Learning Portal, the date of the Affidavit should be 7 days before the date allocated for the hearing in the timetable. All other dates should be calculated from the date this matter was first programmed in the timetable. Some comments with regard to the Affidavit evidence generally:Please note that, apart from a few exceptions, all the facts and evidence you wish to rely on to support every one of your submissions, that you wish to make at the hearing of this motion, must be contained in the affidavits. Remember you cannot give evidence from the bar table and every submission must be based upon facts contained in your affidavit evidence, or in your opponents affidavit evidence. Your submissions should be based on and address each and every element needed to be proven for this application as set out in the model summary Just as a reminder and a refresher, you must always remember to:- properly use paragraphs. - initial any alterations. - the deponent and the witness must sign on every single page? - the affidavit must be correctly signed by the deponent and the witness at the end and dated. - the jurat clause must be checked to be complete and correct. - the affidavit must contain facts and evidence relevant only to the current motion(s) before the court. - those facts must be in a sensible ordered sequence.
6
- the contents must all be admissible, bearing in mind that first hand hearsay evidence is admissible in interlocutory proceedings, provided you state the source of that hearsay evidence. - if there are any allowable conclusions, there must be facts there to support such a conclusion. Annexures 1. All annexures must have been properly referred to and introduced in the body of the affidavit itself. 2. 2. Each annexure must be actually marked for example:- “A” 3. Each annexure must have the appropriate annexure note endorsed on it, for example:“This and the following ….pages is the annexure marked “A” referred to in the affidavit of………………sworn/affirmed at ………………. on ……. Before me ………………………”
AFFIDAVIT OF Joyce Judd 11 May 2009 COURT DETAILS Court
District Court of New South Wales
#Division
Civil
#List
General
Registry
Sydney
Case number
3777/05
TITLE OF PROCEEDINGS First plaintiff
Joyce Judd
Second plaintiff
Margaret Judd
First defendant
Barry Cousins
Second defendant
Maria Cousins
FILING DETAILS Filed for
Joyce Judd First plaintiff
#Filed in relation to
Plaintiff’s Notice of Motion for Summary Judgment
#Legal representative
Lawrence Law Law & Co
#Legal representative reference
LL:2345
Contact name and telephone
Lawrence Law (02) 9965 7000
2
[on separate page]
AFFIDAVIT Name
Joyce Judd
Address
11 Barker Close Hornsby NSW 2077
Occupation
Chef
Date
11 May 2009
I say on oathe 1
I am the first plaintiff.
2
On or about 11 September 2007 my mother and I had a conversation with Barry Cousins (Cousins). Cousins had indicated previously that he wanted to borrow money from us. The conversation was as follows: Cousins said words to the effect of: “I need some money to help pay for my legal fees. It would be great if you [my mother and I] could take out a mortgage on your home and lend me the money. I will pay the mortgage payments until I sell my house next December. When I sell the house, I will pay the balance of the mortgage in full.” I said to Cousins: “We will lend you the money, but I want to have the agreement put in writing. We will only lend you the money if we are able to put a caveat on your property.” Cousins said: “Ok.” I also said to Cousins: “I would also like your mother to sign the agreement as guarantor. Can you speak to her about this, and make sure she understands what he responsibilities will be.” Cousins said: “Ok, I will arrange for that as well.”
3
On or about 11 November 2007 I went to see Cousins and his mother, Maria Cousins, at his home at 25 Bass Road Orchard Hills NSW 2xxx. I took a copy of an agreement (the Agreement) I had my solicitor draw up with me. A copy of the
3
Agreement is annexed and marked Annexure A. When I showed Cousins the document he said: “I am happy to sign anything. Where do I sign?” I said to Cousins: “You should read the document before you sign it. Your Mum also needs to sign it and she needs to be sure she understands what the agreement means and what her liabilities are.” 4
Cousins read the Agreement and signed it. Maria Cousins also signed the Agreement. I then signed the Agreement. My mother, Margaret Judd, signed the Agreement.
5
On or about 18 November 2007, a week after we all signed the Agreement, the loan was approved by the Commonwealth Bank of Australia and was drawn down. On that day, Cousins came to the Commonwealth Bank branch at Chatswood to collect. The bank officer provided Cousins $40,000 in cash, $60,000 by way of cheque, and charged $1,200 in fees. That adds ups to $101,200.00, the total amount of the loan provided in part A of the Agreement. The bank offer also provided Cousins with a repayment book so that he could make the payments as agreed to under Clause 1 of the Agreement.
6
On or about 15 December 2008, Cousins stopped making payments. Evidence of the payment history is provided by the repayment book, a copy of which is annexed and marked Annexure B. (you don’t have this book) The last deposit entry made by Cousins was on is dated 15 December 2008.
7
On or about 11 February 2009 Cousins phoned me to discuss his obligations under the Agreement. Cousins said: “Things are tight, and I have no money. I have to move out of my house, as I can no longer make the mortgage repayments on it. I have a place to rent though. I won’t be able to make the payments on your loan to the Commonwealth Bank either.” I said to Cousins: “You signed an agreement that you would make those mortgage repayments. You told me you would be able to continue to pay them.” Cousins said:
4
“I cannot afford to pay them any more. You will have to pay them. I will bring the payment book over to you this afternoon so you can make the payments.” 8
Cousins called me back an hour later on 11 February 2009 and said: “I can’t bring the payment book around now, I’m too busy.” I said: “A payment needs to be made on Monday, I have to have the book.” He said: “That’s not my problem.”
9
We made arrangements for my taxi driver, Patrick Smith, to collect the payment book. Patrick Smith collected the book and returned it to me on or about 4pm on 11 February 2009.
10
The payment book shows that I started making payments from Monday 16 February 2009.
11
Neither Cousins nor Maria Cousins have made, or offered to make, payments as required under the Agreement.
12
Part 2 of the Agreement provides that when the borrower defaults on payments, the balance of the amount provided to the borrower under the Agreement and any other monies owed fall due and payable immediately._ - that is a submission that you will make at the hearing
13
Part 4 of the Agreement outlines the guarantor’s responsibilities to ensure the borrower performs his obligations under the Agreement.- that is a submission that you will make at the hearing
14 15
The defendant’s offer to pay $50.00 per month in paragraph 5 of the Defence filed on 5 April 2009 is not accepted by the first plantiff. Not necessary One of the elements that has to be proven is that the plaintiff believes that the defendant has no defence. You will need to include a statement to this effect, by the plaintiff in this affidavit.
5
SWORN at
2 Chandos Street St Leonards NSW 2065
Signature of deponent Signature of witness Name of witness
Lawrence Law
Address of witness
2 Chandos Street St Leonards NSW 2065
Capacity of witness
Solicitor
Note: The deponent and witness must sign each page of the affidavit. See UCPR 35.7B.
Some general comments:I haven’t double checked them, so please check that your dates are all correct? As per the instructions given in the “Important notes” on the Learning Portal, the date of the Affidavit should be 7 days before the date allocated for the hearing in the timetable. All other dates should be calculated from the date this matter was first programmed in the timetable. Some comments with regard to the Affidavit evidence generally:Please note that, apart from a few exceptions, all the facts and evidence you wish to rely on to support every one of your submissions, that you wish to make at the hearing of this motion, must be contained in the affidavits. Remember you cannot give evidence from the bar table and every submission must be based upon facts contained in your affidavit evidence, or in your opponents affidavit evidence. Your submissions should be based on and address each and every element needed to be proven for this application as set out in the model summary Just as a reminder and a refresher, you must always remember to:- properly use paragraphs. - initial any alterations. - the deponent and the witness must sign on every single page? - the affidavit must be correctly signed by the deponent and the witness at the end and dated. - the jurat clause must be checked to be complete and correct. - the affidavit must contain facts and evidence relevant only to the current motion(s) before the court. - those facts must be in a sensible ordered sequence.
6
- the contents must all be admissible, bearing in mind that first hand hearsay evidence is admissible in interlocutory proceedings, provided you state the source of that hearsay evidence. - if there are any allowable conclusions, there must be facts there to support such a conclusion. Annexures 1. All annexures must have been properly referred to and introduced in the body of the affidavit itself. 2. 2. Each annexure must be actually marked for example:- “A” 3. Each annexure must have the appropriate annexure note endorsed on it, for example:“This and the following ….pages is the annexure marked “A” referred to in the affidavit of………………sworn/affirmed at ………………. on ……. Before me ………………………”
