A Queensland judge has rejected a bid by the former AFL player Tony Smith to use an alleged confession of perjury he obtained from a banker to revive a $68m lawsuit against National Australia Bank.
The supreme court of Queensland on Friday rejected Smith’s bid to set aside a 2012 ruling against his damages claim against NAB because he had “evidence” his one-time personal banker Adam Gazal had admitted to lying to the court.
Smith launched the legal action against Gazal in November, claiming the banker, in a conversation with him and detective-turned private investigator Michael Featherstone, conceded giving false evidence over his role in a $20m loan for Smith in 2007.
The following month Queensland police arrested Featherstone and Clive Palmer’s publicist Andrew Crook over the incident on the Indonesian island of Batam in January 2013, charging them with attempting to pervert the course of justice, retaliating against a witness and fraud.
Smith, who voluntarily returned from Indonesia this year to face the same charges, is accused of enlisting Featherstone and Crook in a ruse to lure Gazal to Batam on the false pretext of a job offer with Palmer.
The former AFL player claimed in his original lawsuit against NAB that he would have sold his shares in the company MFS to repay margin loans he held against them, thereby avoiding a $68m loss, had Gazal not falsely led him to believe the bank had given him a new $20m loan facility.
After his arrest, Smith’s lawyers asked for the civil action by his company AKS Investments against Gazal to be postponed until criminal matters against him were dealt with.
But Justice Martin Daubney on Friday refused, instead granting summary judgment in favour of Gazal.
Gazal’s lawyers had told the court that he stood by his evidence in the 2012 trial that he had told Smith he had not met the conditions for the new loan and that he “has not made any free and voluntary statement to the contrary”.
Daubney ruled that even if the banker had committed perjury, Smith could not blame NAB for his loss of $68m in the collapse of MFS.
Smith claimed he bought an extra $2m more shares in MFS under the impression he had been given the $20m loan by NAB, but later found out this was not the case.
He was forced to sell his Gold Coast mansion, one of Queensland’s most expensive, to repay loans against his worthless MFS shares.
Daubney endorsed the court’s 2012 findings that were “completely destructive” of Smith’s civil case on the basis of his own evidence. This included that he separately fabricated a letter from a builder to try to get $5.5m from NAB on the pretext of building another house in January 2008, when he in fact wanted to use the money to pay his margin calls on MFS losses. The court had found this showed Smith knew the $20m facility had not been available to him.
The court also found there was no reason to think Smith, who still had a $10m facility available to him, would have sought to unload $10m of MFS shares days before its collapse when he had publicly stated his opinion the share price would recover.
In his judgment, Daubney said he was “not at all satisfied that AKS has a real prospect of establishing that a different result would probably have been reached on the question of liability if Mr Gazal and (his colleague) had not committed the alleged perjury”.
The criminal prosecution of Smith, Featherstone and Crook continues, with the trio yet to enter any pleas as their legal teams await a police brief of evidence.
