Valuer responsible for fraudulent business loan

A Melbourne valuer and restaurant operator who engaged in a fraud against Interstar and Perpetual must repay a business loan, after his spouse failed to make out a claim of unconscionable conduct in connection with the loans and mortgage.

The Supreme Court of Victoria last week ordered the valuer, Craig Fitzgerald, to pay "damages in the amount of the present balance outstanding under the loans, including interest" of A$1.2 million.

Fitzgerald needed the loan in 2004 to fund his share of the purchase of the Shark Fin Inn Chinese restaurant in Burwood, along with Dominic Lamanna, a friend and work colleague. Fitzgerald's spouse, Xiao Hui Ying (also known as Hui Ting Xiao) was to manage the restaurant while the two men continued working as property valuers at the same firm.

The judgment, by Justice Hargrave, does not identify their employer.

To assist Fitzgerald, Xiao agreed to a transfer of loan to herself from the estate of Fitzgerald's mother.

The case gets murky with two further steps: a re-transfer of the land to Fitzgerald, to be held in escrow until Fitzgerald required the land to be transferred back to him; and a deed of trust, under which Xiao declared she held the land on trust for Fitzgerald and agreed to deal with it in accordance with his directions.

Xiao denied signing documents in relation to these last two steps.

Fitzgerald then arranged for two loans to be made to Xiao by Perpetual Trustees Victoria, as trustee for Interstar.

Justice Hargrave wrote that it was "clear that Fitzgerald acted fraudulently in obtaining the loans.

"He did not tell Xiao he was doing so; he forged her signature on the loan agreements, mortgage and related documents; he provided Capital [the loan broker] with a false valuation of the land; and he arranged for the concoction of false information and documents purporting to show that Xiao was employed by an entity associated with Lamanna that paid her regular and substantial wages."

The judge found there was no unconscionable conduct by Interstar or Perpetual.