Court finds that solicitor misled bank in loan application and made untruthful claims in his defence … Lawyer under “significant financial pressure” … Doctored documents … Defendant’s evidence “beggars belief” 

SYDNEY solicitor Tony Barber is in strife after David Hammerschlag of the NSW Supremes found that he concocted a wild defence to Westpac’s demand for its money back and provided false information to the bank about his income. 

Barber’s defence to the bank’s claim for $1.5 million was that he shouldn’t be required to pay the money because it was his agent, Sakhr El Akkary, who gave Westpac false and fraudulent information in support of a loan application. 

He added that El Akkary was in cahoots with bank officer Paul Norton and they were both parties to a fraud on Westpac. 

Barber, who is a sole practitioner working from home, later withdrew the allegation that the bank was implicated.  

Another “remarkable” aspect of the case was the information provided about Barber’s income. The application for the mortgage loan, dated September 28, 2010, said Barber’s gross annual income was $494,000. In fact, it was $30,000 a year. 

The Hammer found that Barber knew this was a deliberate falsity. 

Barber contended that his signature on the loan application was a forgery. He also claimed that documents from the ATO and NAB, in support of his loan, were doctored – presumably by Mr El Akkary. 

There was also a letter provided to the bank from a company called Viscona Pty Ltd saying that a $800,000 debt to the company by Barber had been settled. Barber claimed this letter was also a forged concoction. 

After some tweaking of the valuation of the mortgaged property, Westpac provided a facility of $2.6 million to the mortgagor, largely to be applied to the redevelopment of the mortgaged property. 

Barber, who represented himself, told the court that if it found that the false information about his income emanated from him, or if it was accepted that the bank did not know the information it relied on was false – then that was the end of his case. 

The Hammer said his case failed for both reasons. 

It was a requirement of the bank that the borrower take out life insurance to cover the loan. In the life policy application Barber said his income was $595,000 and his net income after expenses was $494,000. 

This information “strikingly resembles” the information he says El Akkary passed onto the bank without his knowledge or participation. 

Hammerschlag said Barber’s claim that he played no part in providing the false income information, “beggars belief … On his own admission he is dishonest”. 

Bank officer Paul Norton told the court that Barber advised him that his annual business income was $465,000. Hammerschlag accepted that evidence. 

El Akkary also told the court that all the information that went to the bank came from Barber. 

It emerged from the Hammer’s reasons that Barber, at the time, was under “significant financial pressure”. He was in default on a loan from Credit Connect, with interest arrears of $137,783. 

“Revealing his true annual income would have been the death knell of his application, one might have thought. He was also undoubtedly aware that the existence of the Viscona loan may have adversely affected his prospects of the bank lending him the money.” 

The judge was satisfied that the bank did not doctor the financial information and he was “far from satisfied that [Barber] did not do those things”. 

The solicitor’s cross claim against the bank alleging breach of obligations in exercising its power of sale as mortgagee in possession, was also tossed out.  

There was no admissible evidence establishing the market value of the property at the date of sale or settlement. 

The bank got indemnity costs and the Hammer referred the papers to the Law Society.