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
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[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
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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:
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“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.

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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.

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- 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 ………………………”