TRANSCRIPT OF PROCEEDINGS
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL CLAIMS LIST
MELBOURNE
MONDAY 19 MARCH 2007
BEFORE HER HONOUR JUDGE HARBISON
B E T W E E N
HARIHARAN IYER
Applicant
- and WESTPAC BANKING CORPORATION
Respondent
_______________________________________________________________
CRS WORDWAVE PTY LTD - A MERRILL COMPANY
3/221 Queen Street, Melbourne.
Telephone:
Facsimile:
9602 1799
9642 5185
1
HER HONOUR:
2
MR IYER:
3
MR STRONG:
Mr Iyer, you appear on your own behalf?
Yes.
My name is Strong.
I am of counsel.
The question
4
of representation was raised at the Directions hearing I
5
believe but no formal order was made and I seek
6
permission to appear as professional advocate for Westpac
7
Banking Corporation.
8
9
10
HER HONOUR:
Mr Iyer, is there any reason why I shouldn't give
Westpac the right to have counsel appear before me today?
MR IYER:
Your Honour, I am not quite familiar about the
11
procedure, whether I have right to object for somebody
12
else appearing today.
13
HER HONOUR:
Well in minor matters sometimes the Tribunal
14
requires people to present their own cases.
15
matter in which you have claimed quite a lot of money so
16
unless there is some extraordinary reason that I don't
17
know about I would plan to give Westpac the right to be
18
represented by counsel.
19
wish to raise as to that?
20
MR IYER:
This is a
Is there any matter that you
The only reason I would probably say is that I have
21
not been notified that there is somebody else appearing,
22
that's all.
23
have got no objection to that.
24
25
HER HONOUR:
If that is permitted within the procedures I
Who appeared for Westpac at the earlier Directions
hearing.
26
MR IYER:
I forget the name of the other gentleman.
27
MR STRONG:
28
HER HONOUR:
It was my instructing solicitor, Mr Ewer.
Yes, well if a solicitor has appeared at all the
29
other Directions hearings and given, as I said, that a
30
large amount of money has been claimed, I will give
31
Westpac leave to be represented by counsel in this
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1
DISCUSSION
1
proceeding, thank you.
2
MR STRONG:
3
HER HONOUR:
4
5
6
7
If Your Honour pleases.
Yes, now Mr Iyer it is your case.
Do you wish to
start with your application?
MR IYER:
Yes, yes.
Am I allowed to read something from my
notes?
HER HONOUR:
Well first of all what I want you to do is tell me
8
is there a document that you have prepared that sets out
9
what your claim is in this matter.
10
MR IYER:
Yes it is.
11
HER HONOUR:
So where is it, have you got it there?
12
you can hand it up.
13
shown to the solicitors for Westpac?
14
15
16
MR IYER:
Perhaps
Is this a document that you have
I have given one set for them already and one set is
(indistinct).
HER HONOUR:
All right, well perhaps you can identify from the
17
file the documents that you rely on. Stay there and the
18
file will be brought to you.
19
As I understand it there is a document headed
20
"Introduction to the case, the parties, their knowledge
21
and background."
22
MR STRONG:
23
HER HONOUR:
Do you have that?
Yes I do.
There is another document which is dated 1 March
24
2007 which is headed "Final version with correct claims
25
on page 2 and 3."
26
MR STRONG:
27
HER HONOUR:
28
29
Yes, we have that your Honour.
So which of these documents do you want me to be
looking at, Mr Iyer, the introduction?
MR IYER:
The introduction of the first one.
This case is - I
30
am bringing to your office as a point of misleading,
31
false and deceptive conduct by a licensed reputed
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2
DISCUSSION
1
institution operating in Victoria, not abiding by the
2
requirements of the Fair Trading Act, 1999.
3
4
5
HER HONOUR:
Which section of the Fair Trading Act do you say
you claim comes under?
MR IYER:
Section 9 and section 8.
Section 9 for misleading,
6
false and deceptive conduct and section 8(C) and (D) for
7
unconscionable conduct.
8
deceptive conduct and section 11, misleading conduct in
9
relation to sub-leases.
10
Section 9 for misleading
This case is about the justification and not the
11
legitimacy of charging compound interest on home loans,
12
car loans and personal loans in Victoria.
13
14
15
HER HONOUR:
So do you have a home loan and car loan from
Westpac?
MR IYER:
I have a home loan that I rolled over to another bank
16
in March 2002 and I had a personal loan but I'm not
17
bringing that as part of this case.
18
HER HONOUR:
19
loan.
20
MR IYER:
21
HER HONOUR:
22
MR IYER:
All right, so your claim is in relation to a home
Only.
And you have paid out that loan?
I have paid Westpac but then I transferred to
23
National Australia Bank, yes.
24
talk about the rate of interest, advice and the
25
fluctuations in the interest rates in the market due to
26
market economic conditions.
27
the rights of the licensed lender, whether they have a
28
right to charge compound interest or simple interest, I
29
am not talking about those.
30
the borrower's duty to pay interest at an agreed rate,
31
subject to changes due to and only due to market
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3
I am not here about to
I am not here to talk about
I am not here to talk about
DISCUSSION
1
fluctuations.
What I mean is if the interest that is
2
being charged on me is only due to market fluctuation I
3
have got no questions about those, only in case there is
4
something hidden that is not being told.
5
am coming up to.
That is what I
6
This case is not about whether it is appropriate or
7
not that compound interest charged by the licensed lender
8
is tax deductible or as interest expense in productive
9
loans.
10
11
I am not bringing any tax related matter into
this case.
HER HONOUR:
Well perhaps you might tell me what it is about.
12
I am not going to be interested, obviously, in things
13
that this case is not about.
14
MR IYER:
So what is it about?
It is, as I mentioned on the first page, the first
15
two paragraphs.
16
here to speak about as the primary reason why I have
17
brought this before you.
18
other words all I am saying is what I have been - all the
19
duty to be disclosed, I should have been told and they
20
have not told until just I had surprise information that
21
has been disclosed what happened just last week, which
22
never took place for all this time when I have been
23
requesting and begging around to show me.
24
how are you charging compound interest, simple interest?
25
Nobody ever bothered about my problem, so I need to bring
26
that and suddenly only I have brought it in front of VCAT
27
and that too only when I insisted that I go for a
28
hearing at the time I get some kind of legal reference
29
that has been provided by the courtesy of their
30
representation.
31
HER HONOUR:
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There are only two paragraphs that I am
It is false, misleading.
Where this,
So this case is about your home loan.
CD
4
In
You have
DISCUSSION
1
documents in relation to the home loan that you entered
2
into with Westpac?
3
MR IYER:
Yes I have got the loan everywhere.
4
HER HONOUR:
Hand those up to me.
I will give you the file and
5
you can tell me which documents I should be looking at
6
Mr Iyer.
7
which was a division of Westpac.
8
document and it is dated - - -
9
MR IYER:
date.
11
HER HONOUR:
MR STRONG:
14
HER HONOUR:
16
loan offer
7 October 1999. Do you have a copy of that
document?
13
15
It is
At the bottom of that, on the left hand side the
10
12
There is a document headed Bank of Melbourne
Yes I do.
This is the document which sets out the home loan
from Westpac in the sum of $148,400.
MR IYER:
That's right.
This document was, as we can see,
17
prepared on 7 October 1999.
18
Thursday in that year, that month and we got a call from
19
the Bank of Melbourne, Cranbourne branch, that the loan
20
is being approved and we need to come there to sign the
21
document.
22
appointment on Monday which was 11 October.
23
24
HER HONOUR:
That happened to be a
We couldn't go on Friday and we had an
Yes, so you signed the document on 11 October, and
when you say "we" is it yourself and your wife?
25
MR IYER:
Yes, myself and my wife.
26
HER HONOUR:
27
MR IYER:
Are you bringing this claim on her behalf as well.
Sure yes.
So we went there to Bank of Melbourne in
28
Cranbourne on the 11th, if I remember well it's about
29
11 o'clock in the morning and the manager there
30
congratulated that we are getting our home and our loan
31
has been approved and we just have to sign the document.
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5
DISCUSSION
1
They showed where I had to sign and I requested the
2
manager to tell me if it's a standard contract and he
3
said, "Every contract here is a standard contract" and I
4
trusted this because they have got nothing particularly
5
against me to prepare a separate document.
6
HER HONOUR:
I will just interrupt you there and just say this.
7
Mr Strong, I think it may be worthwhile for Mr Iyer just
8
to set out
9
evidence in the witness box as to these issues but I just
10
want to have an understanding because, although there has
11
been a lot of documents filed I don't yet have a clear
12
understanding of what the case is about.
13
happy if Mr Iyer sets out his claim and then he can go
14
into the witness box?
15
MR STRONG:
his claim first.
He may have to give
That might cause some repetition.
So are you
Perhaps another
16
course would be for him to take the oath and give his
17
evidence at the same time as he is presenting his case.
18
HER HONOUR:
Yes, I had expected that you might be able to tell
19
me in summary Mr Iyer, what the case was about.
20
are going to go into all this detail then it is right
21
what Mr Strong says, we don't want to have to do it
22
twice.
23
say you are owed by Westpac and once you've done that
24
I'll get you to go into the witness box and give evidence
25
about the circumstances of your claim.
26
are you owed under this contract, and why?
27
MR IYER:
If you
Perhaps you can just summarise the amounts you
So what amounts
The amount that I have worked out that I presented to
28
VCAT and to the respondent earlier, I worked out on an
29
average, on the compounding effect on an average that I
30
have been charged 51.314 per cent more than what I was
31
supposed to pay.
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Then I got the different counsel
6
DISCUSSION
1
presentation saying that that was an average and they
2
wanted to work out on daily basis, daily compounding
3
basis whatever, applying the logic that I have presented,
4
and I did the calculation again and when I did the
5
calculation it comes to - the respondent has come up
6
saying that I have paid only $1,500 more than what I was
7
supposed to pay.
8
coming in front of you that calculation is still wrong.
9
What I have paid more is not $1,500.
10
HER HONOUR:
12
MR IYER:
13
HER HONOUR:
15
What I have paid
more is $1,001.89.
11
14
Unfortunately in spite of this case
$1,001.89.
That is what I have paid more, not $1,500.
So the difference between what you should have
been charged and what you have been charged is $1,001.89.
MR IYER:
$1,001.89 is what I have charged more but they are
16
coming to saying that $1,500 I have been charged more
17
only after I came to VCAT.
18
19
HER HONOUR:
have been overcharged on this loan contract.
20
MR IYER:
21
HER HONOUR:
22
MR IYER:
23
I want to know as of today how much you say you
$1,001.89.
So is that your claim?
That is my actual claim yes, that's right, that's
what I have paid more from my pocket.
24
HER HONOUR:
25
MR IYER:
26
HER HONOUR:
27
MR IYER:
So this is a claim for $1,001.89, is that right?
That's right.
And that's all?
Plus the cost of coming to you and plus the time and
28
everything that I have incurred, that's exemplary damage
29
I was claiming there.
30
31
HER HONOUR:
Well you don't get exemplary damages from
preparing a case.
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You have prepared this case, you
7
DISCUSSION
1
haven't had solicitors act for you?
2
MR IYER:
3
HER HONOUR:
4
MR IYER:
5
HER HONOUR: So the amount you are saying that you have been
6
7
No.
So you don't have any out of pocket expenses.
Right.
overcharged on this loan is $1,001.89?
MR IYER:
Yes, I don't want to take advantage of the respondent
8
saying I have paid $1,500.
No I have paid $1,001.89
9
more.
10
HER HONOUR:
11
<HARIHAN IYER, sworn and examined:
12
HER HONOUR:
All right, get in the witness box please.
Your full name, address and occupation?---My full
13
name is Hariharan Iyer and the address is 16 Cuthbert
14
Place, Burnside, Victoria 3023 and my occupation - I'm an
15
accountant.
16
I have already asked you some questions and you have told me
17
that the claim in this matter is based on the loan
18
document which is dated 7 October 1999 which I have but
19
which was signed by yourself and your wife on
20
11 October 1999.
21
oath what is claimed under this document and how you have
22
calculated that claim?---The loan document says that the
23
amount of credit is $148,400 annual percentage variable
24
housing rate.
So perhaps you can now tell me under
25
Sorry, where should I be looking?---In the front - - -
26
Yes, amount of credit $148,400?---And the next line annual
27
percentage rate, variable housing rate which is currently
28
6.55 per cent per annum will apply.
29
Yes?---Your Honour in all my knowledge and experience, my
30
understanding and education 6.55 per cent per annum to me
31
straight away rings that bell that it is an annual
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IYER XN
1
interest rate which I studied in mathematics as simple
2
interest.
3
Why would you think that?---Because my teachers have taught me
4
if there is an interest per annum, "pa" stands for per
5
annum and that's simple interest, that means interest is
6
always calculated on the principle.
7
taught me.
That's what they
8
Yes?---Whenever I have asked for loan I always try to shop
9
around the interest rate being at least .25 per cent
10
better than another bank that is offering the same loan
11
for me and I have been always taught that interest
12
percentage per annum which certainly rang the bell to me
13
only as simple interest.
14
have signed the contract, I have commenced repayment, I
15
have asked my question to the manager because checking
16
the signature, whether it's a standard contract, which he
17
agreed it's a standard contract.
18
to suspect a reputed licensed institution to be saying
19
something to me and doing something in their calculation.
20
I trusted everything is right, I have paid my home loans
21
on regular repayments without any default.
22
very honest person paying the money on time and I find
23
that the amount that they have calculated is not really
24
working out the right way.
25
five or six months back I sat down to find out whether
26
all the interest they have charged they are entitled or
27
not.
28
always my teachers have taught me saying that we start
29
with an hypothesis of unknown item as "x" or unknown item
30
as "100."
31
home loan that somebody is borrowing.
Unsuspectingly I have gone, I
I didn't have anything
I have been a
In September 2006 just about
I worked out a hypothesis, because in mathematics
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So I started my calculation as $100,000 as a
CD
9
IYER XN
1
I do not want to deal with hypothesis. I want to deal with this
2
actual contract I have in front of me.
3
you thought was meant by the words "Standard
4
contract"?---It meant to me that everybody gets a similar
5
type of contract except that they insert only the actual
6
amount of dollars that they're borrowing, plus the
7
interest rate and the term.
8
being inserted when it's a standard contract.
9
So why do you say that was wrong?
What do you say
That is what I thought is
What was incorrect about
10
calling the contract a standard contract in this
11
case?---There is nothing wrong to call that contract a
12
standard contract except that the standard contract
13
doesn't tell exactly that 6.55 per cent per annum is
14
compounding monthly.
15
to alert me that this is a compound monthly concept they
16
are following.
17
They have failed to mention, failed
That has not been disclosed to me.
Why do you say that should have been disclosed to
18
you?---Because if they had told me it is compounding
19
monthly I would have rejected the loan straight away, I
20
would have waited for a few more years until I gathered
21
some more money as a deposit, I'll go for 50 per cent of
22
capital for buying the house.
23
having my own house and own car for many years.
24
So you say the difference between what you thought you were
I have lived here without
25
going to be charged for interest and what you were
26
actually charged is $1,001.89?---Luckily, because I
27
stayed with them only for two years.
28
So you say that difference of $1,001,89 would have alerted - if
29
you had known about that you wouldn't have entered into
30
the loan.
31
- over a period of 25 years loan it is not $1,001.
.VCH 19/03/07
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Is that what you are saying?---If I knew that
CD
10
Over
IYER XN
1
a period of 25 years it is 47 per cent more than what I'm
2
supposed to pay.
3
4
5
You understand all I can deal with today is your contract and
what you have lost?---Right.
But you say you thought this was a simple interest rate but in
6
fact it is compound interest rate and, as a result of
7
that you have lost $1,001.89?---Yes.
8
Are there any other matters about entering into this contract
9
that you want to explain to me?---The way the contract,
10
the loan approval, the way the contract has been
11
pressured to sign.
12
this contract because I didn't apply for the loan
13
directly to the Bank of Melbourne.
14
through the builder and the builder had pressure on me to
15
tell them whether we are going ahead or not.
16
point I had been told my loan is approved, so once my
17
loan is approved all that I have to ensure is I'm signing
18
the normal regular contract.
I signed it and I just
19
wanted to keep things going.
That's all I did.
20
21
22
23
I have been under pressure to sign
I had to apply
At that
You understand this is not a claim against the builder, this is
a claim against Westpac?---Sure.
You are not saying you were pressured to sign by
Westpac?---Yes, that's what I'm saying.
24
You were?---Yes.
25
So who was it at Westpac who pressured you to sign?---Westpac
26
didn't give me the time, Westpac didn't tell me "we don't
27
know whether this contract is clear for you or not, we
28
suggest you take it to solicitor and read that."
29
thought probably if there is something that is customary
30
of trade practices in Melbourne I would have expected the
31
bank to alert me to go to a solicitor and get an opinion
.VCH 19/03/07
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11
I
IYER XN
1
2
before I sign.
So what is it you think the bank should have alerted you
3
about?---About all the terms and conditions in this
4
because on page 10 - the condition on page 10 is the one
5
that in the summary contract, it's 10 of the 24 pages.
6
It is the document entitled "You and your loan."
7
I don't know whether I have got that.
The document I've got,
8
the loan offer finishes at page 8.
9
is what you meant.
Just check that that
If that is the document then I will
10
take it from there.
11
and conditions.
12
can I draw your attention to the front page of this loan
13
agreement?
14
I am looking at page 10 of the terms
Whereabouts?---Before we go into that
Yes?---From the top, the third line says, "All the terms and
15
conditions of the lenders offer to you are set out in
16
this letter and the accompanying booklet of standard
17
terms and conditions, version B and E.008 of the booklet
18
I have lost you, which page was that?---The first page, I am
19
reading from this portion.
20
This is the loan offer document.
I have got that.
So this
21
loan offer is to be read with the booklet "You and your
22
loans"?---And what it says, the next line there is very
23
important for me to bring to your attention.
24
is any inconsistency the letter prevails."
25
"If there
Yes?---Now when I read the first eight pages that you have got
26
of the loan offer nowhere have I come across either the
27
word "compounding monthly" or the words "Interest will be
28
charged on interest."
29
first eight pages anywhere.
30
document, "You and your loan" on page 10 of 24 pages,
31
p.10 has got
.VCH 19/03/07
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I have not come across in the
When I read in the next
point 9, condition F "How the lender
12
IYER XN
1
applies your repayments" and it is set out if you have
2
the subsidised loan we will apply all payments made by
3
you in the following order "to the extent the payment
4
covers each amount, first any unpaid government charges"
5
No disputes about that.
6
expenses" no questions about that.
7
interest which has been debited to the loan account on or
8
before the date of payment."
9
fees and charges" no questions about that.
10
Second "Any unpaid enforcement
Third, "Any unpaid
Fourth, "Any other unpaid
Fifth, "the
principle of the loan."
11
I am having least English knowledge, my English
12
knowledge is limited to the level I can communicate,
13
that's the level to which I have got communication level.
14
By reading this I have got no idea, and even I have tried
15
this with another 100 of my friends to see if they mean
16
anything else compound interest, and I got an answer no
17
from all the 100 people.
18
this is compound interest.
19
question, by reading this if they get an idea that if
20
they continue to repay the loan to Westpac for over 25
21
years do they get an idea they will end up paying 47 per
22
cent more than what they should pay?
23
have got no idea that is the volume of which they are
24
going to be paying extravagant amount over a period of
25
time.
26
years.
27
many years and I am not here to talk about that part.
28
am talking only about my loan document and when I see
29
this I find I have been duped.
30
31
There is no clue for them that
I have asked them, next
Everybody said they
Luckily I have stayed with Westpac only for two
My friends have stayed with many other banks for
I
Are you saying that you didn't understand that the monthly
payments you would be paying on your loan were as high as
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IYER XN
1
they were?---I knew the monthly.
2
You knew how much you would be paying?---I knew because - - -
3
How much was it you were going to be paying on the
4
mortgage?---I had
been told that I will be paying about
5
800 and odd dollars, that's what I've been told and
6
whenever I found people going for a loan all they check
7
are only two things.
8
whether the amount of repayment that is being told by the
9
bank is within their capability to pay that.
One, everybody wants to know
Second they
10
would like to see the interest rate that is being quoted
11
by the bank is marginally better than another bank.
12
is how, at least the people I deal with, they have chosen
13
their lenders.
14
That
Is there anything else that you want to draw my attention to in
15
these documents?---The front page of this document says
16
"If there is any inconsistency the letter prevails."
17
Bank of Melbourne has committed me by this sentence, that
18
if I find this is not matching with what they have quoted
19
there as per annum, which to me means simple interest,
20
they are saying to me if there is a discrepancy between
21
the two, they want me to take up the letter of offer as
22
the one that prevails over "You and your loan."
23
basis I have requested Westpac to work out
24
interest and pay me the difference.
25
with in a very harsh, unruly manner that forced me to try
26
everywhere and then finally land up in front of you.
27
That is all I have got to say.
28
29
HER HONOUR:
On that
simple
I have been dealt
Thank you, stay in the witness box.
Mr Strong
will ask you some questions.
30
<CROSS-EXAMINED BY MR STRONG:
31
What are you academic qualifications?---My academic
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14
IYER XN
1
qualifications?
2
answer, Your Honour?
3
HER HONOUR:
Is this a relevant question I need to
Well you have told me you are an accountant.
4
there some qualifications you have to be an
5
accountant?---At the moment I'm a CPA.
6
That is not an academic qualification?---Academic qualification
7
- I have got a post graduation in commerce, post
8
graduation in education.
9
personnel
10
11
12
13
Is
MR STRONG:
I have got a post graduation in
management.
So you are a certified practising accountant?---I'm
a certified practising accountant, currently.
What was your employment position at the time you took out the
loan in 1999?---I was working for an accountant.
14
In an accounting firm?---Yes.
15
What is your employment position now?---Is this relevant at all
16
for me to answer your Honour?
17
HER HONOUR:
18
MR STRONG:
Mr Strong?
I want to establish the groundwork of this because
19
Mr Iyer has put forward to us a number of spreadsheets
20
and other forms of calculation.
21
HER HONOUR:
He doesn't look as if he is relying upon them as
22
at now.
23
which I presume is the difference - which he told me is
24
the difference between the calculation on his loan if it
25
was calculated in accordance with simple interest than
26
calculated in accordance with what he describes as
27
compound interest.
28
MR STRONG:
All I have heard about is an amount of $1,000
In order to elucidate how you work that out it will
29
be necessary to go to that document that he hasn't give
30
us yet but he will, to show the calculations, to show
31
what my case will be - to put it very shortly what he is
.VCH 19/03/07
Iyer 07/0269
CD
15
IYER XXN
1
doing is not what he says he is doing at all, it is a
2
different sort of calculation.
3
question about his position now but he has put forward
4
some mathematical calculations.
5
HER HONOUR:
I don't press the
I won't allow the question about his present
6
employment.
7
the loan was working for an accountant.
8
has academic qualifications in commerce, education and
9
personnel
10
MR STRONG:
He tells me he is a CPA and at the time of
He tells me he
management.
You had some negotiations did you with a builder to
11
buy a block of land back in '99, is that what you
12
said?---That was not really relating to my claim with
13
Westpac.
14
other words I was trying to mention that I didn't go to
15
Westpac on my own, but through the builder.
16
I was only mentioning the circumstances.
In
I understand that but the property you wanted to purchase, that
17
you wanted the bank to provide a loan for, was the
18
property being sold to you by a builder, was it?---Yes.
19
20
The idea was you would build a house on that land, is that
right?---Yes.
21
Did the builder introduce you to Westpac?---Yes.
22
Did he introduce you to a man called Tom Smith?---He didn't
23
introduce, he took all my application, everything has
24
been processed by my builder, I never went to the bank at
25
all.
26
was when I got the call on 7 October from Tom - I forgot
27
the surname.
28
The very first time I have ever gone to the bank
Tom Smith?---Yes, we had a call and that's the first time we
29
met Tom, only on 11 October.
30
- in fact on 11 October I had to search for the bank.
31
Prior to that I have never
You actually met someone called Anne Kermin(?) that morning,
.VCH 19/03/07
Iyer 07/0269
CD
16
IYER XXN
1
did you not?---No.
2
No?---No, I never met anybody from the bank at all.
3
On 11 October?---Only on the 11th I must have met Anne for
4
5
signing the document, yes.
You said in your evidence that you sat down and she showed you
6
the documents and you saw where you were to sign them and
7
you said you asked if they were standard documents and
8
you were told that they were.
9
Westpac, that they would have no reason to put anything
You said that you trusted
10
special in the documents against you, is that what you
11
say?---Yes.
12
How long after you signed the documents did you first draw down
13
money on your loan?---I think on the 22nd or 12th
14
of October.
15
been done, not having that in front of me, I don't want
16
to move from here, but you have got the document.
I think it is the first draw down that has
17
If I suggest to you it was 22 October?---Yes.
18
That would be right wouldn't it?---22nd of October would be
19
20
right.
Yes, so there was some 11 days after you signed the documents
21
before you actually drew down any money on this loan, is
22
that right?---Yes.
23
Now, when you finished signing the documents you took the copy
24
of the letter that you gave Her Honour before dated the
25
7th and a copy of this booklet, the "You and your loan"
26
document away with you on the 11th, did you not?---Yes.
27
You did.
I take it from the evidence that what you say is you
28
didn't read this document on the day you signed the
29
loan?---I never said I didn't read the document ever.
30
said that on the day when I signed in the branch I had
31
only 15 minutes so I didn't read it then.
.VCH 19/03/07
Iyer 07/0269
CD
17
I
IYER XXN
1
That is what I put to you, you didn't read it then.
2
HER HONOUR:
3
4
5
In case there is later a transcript - when you say
"this" document.
MR STRONG:
I beg your pardon.
I am referring to "You and your
loan" brochure.
6
HER HONOUR:
7
MR STRONG:
"You and your loan brochure."
Yes, thank you.
Did you read it in the subsequent 11 days?---I have
8
read for rest of my time until September 2006.
9
time I could never understand that any of those terms you
10
11
Till that
have got means compounding monthly.
When did you first read the "You and your Loan" document?---On
12
the same day. I have been an academic.
13
deal with a situation as an academic, as a teacher, we
14
tend to read immediately what we have got to deal with.
15
Every time when I
All right, so you didn't read the document at the bank but you
16
read it later that day?---Later that day I read, before
17
even applying for the first draw-down
18
document.
19
20
Thank you.
I read the
Now, could you open the document at page 9
please?---I didn't register your name?
21
My name is Strong?---Strong.
22
Now go to page 9 of the document "You and your Loan"?---Yes I
23
24
25
am on page 9.
Can you see under heading 7 the words "Interest on your
loan"?---Correct.
26
Then "Calculation of interest."?---Yes.
27
I take it you read this back on 11 October 1999?---Yes.
28
Yes and you can see what it says there, can't you?---I never
29
denied that I can read.
30
definitely understand what it says in English but what I
31
mention is that doesn't make me understand in any way it
.VCH 19/03/07
Iyer 07/0269
CD
I can definitely read, I can
18
IYER XXN
1
2
is interest compounding monthly.
That is my claim.
Yes, well never mind the interest compounding monthly.
Can we
3
just agree on what this does say?---It says "We will
4
charge interest at the end of each day by multiplying the
5
total of outstanding principle and any unpaid interest
6
debited to the loan account by an annual percentage rate
7
and dividing the result by 365."
8
Yes?---It doesn't - - -
9
You have done a number of spreadsheets, have you not, in which
10
you have performed calculations exactly like that?---I
11
did in 2006, September.
12
loan.
13
Not at the time when I took the
Just attend to my questions please.
That makes it very clear,
14
does it not, that the amount on which interest can be
15
charged can include an amount of unpaid
16
interest?---Outstanding principle and any unpaid interest
17
debited to the loan.
18
interest well be debited to the loan which doesn't mean
19
it's compounding.
20
So it means to me that unpaid
Never mind the word "compounding", we can come to that later.
21
I just want you to attend to the question I have asked
22
you.
23
the amount on which interest would be charged at any day
24
could include unpaid interest that has been debited to
25
the loan account?---To me it doesn't.
26
27
It is very clear, is it not, from these words that
Mr Iyer, isn't it there in plain English in front of
you?---Sorry?
28
Isn't that there in plain English in front of you?---It is not.
29
That the amount on which interest is charged could include
30
unpaid interest which has been debited to the
31
account?---That's exactly what I'm saying.
.VCH 19/03/07
Iyer 07/0269
CD
19
It is not
IYER XXN
1
clear to me that interest is getting calculated on
2
interest.
3
4
5
6
I don't understand that part of it.
Now when you came to do your calculations in 2006 you did
understand that, didn't you?---In 2006 I understood yes.
So you are telling Her Honour that you didn't understand this
in 1999?---No.
7
But you do understand it now?---In 2006 yes.
8
HER HONOUR:
9
10
I don't want to interrupt too much but I want to
be sure.
When it says any unpaid interest debited to the loan account am
11
I right in thinking that the $1,000 odd you say you have
12
been overcharged represents times when the monthly
13
payment was paid a little late and so interest was
14
charged on the interest that was already overdue?---No.
15
Is that right?---No, that $1,001 is a hidden compounding
16
interest I calculated.
I have never paid amount later,
17
except on two occasions that they have cited, which
18
amounted to $27 and I am not disputing that part of it.
19
Perhaps I will leave that then because that is what I thought
20
the situation was but we will come back to that after
21
Mr Strong has finished asking you questions?---One
22
submission.
23
no reason I should end up paying compound interest.
24
MR STRONG:
I never defaulted in repayment so there was
Am I right in saying you have said to Her Honour
25
that you are not complaining about any occasion on which
26
the bank has actually charged interest on interest?---I'm
27
saying if I have defaulted the payment I think the bank
28
has got a right to charge interest on interest because
29
when any person who is a borrower defaults in their
30
payment I think the lender has got a legitimate right to
31
take interest on that unpaid amount.
.VCH 19/03/07
Iyer 07/0269
CD
20
IYER XXN
1
Yes?---Here I am, I never defaulted on anything.
2
You talked about being under certain pressure at the time you
3
signed the documents and you said the pressure was from
4
the builder who wanted to know whether your loan had been
5
approved, is that right?---The pressure was first of all
6
the builder wanted to know that my loan is taken out, but
7
that was not the one that was giving pressure for me to
8
sign the document.
9
she had only 15 minutes to sign the document.
It is only Anne, when we went there
10
the pressure I refer to.
11
Have a look at the loan offer at the
12
That was
page on which you signed
it, which is page 7?---Yes.
13
Now you see the words, "Things you must know."?---Yes.
14
Did you read that at the time you signed this document?---I
15
16
mentioned this, I had not read before signing.
You didn't read any of it?---I had not been pointed out to this
17
that I have to know this.
18
know - - -
19
Currently as an accountant I
I am just asking you about the words, the dot points under the
20
heading, "Things you must know."
Now, is it your
21
evidence that you didn't read that before you signed the
22
document?---I don't have evidence that I didn't read.
23
No, are you saying you didn't read that before you
24
signed?---Before signing I didn't read.
25
Yes but you did read it later that day?---Yes.
26
So you knew, didn't you, that if you were unhappy with any of
27
these conditions you could have gone back to the bank and
28
cancelled the loan?---Sure, yes.
29
Having read the documents you went ahead and authorised the
30
first draw down?---I was very happy with Westpac, I'm
31
making my dream come true to have a home.
.VCH 19/03/07
Iyer 07/0269
CD
21
IYER XXN
1
You say you have got your bank statements there?---Yes.
2
Now you received those bank statements regularly?---I don't
3
know why, I got the second set photocopied and sent out
4
to me when I already had original in my file intact.
5
Never mind about that.
You did get them regularly at the time
6
during the period of your loan and no doubt you cast your
7
eyes over them from time to time?---I have.
8
You saw the fact that the bank was charging interest every
9
month?---I have seen the interest debited every month.
10
You saw, didn't you, that the bank was charging interest and
11
adding that to the loan balance on the 22nd, or nearest
12
day, every month, is that not right?---Mr Strong, that's
13
what I'm pointing here.
14
as whether my repayments have gone through correctly,
15
whether you people are charging interest, that's all I
16
see.
17
I can only see a bank statement
I don't see - - -
Well have a look at your bank statement.
I hand up a set to
18
Your Honour.
19
Mr Iyer.
20
questions.
21
statements there is the recording of the initial draw
22
down of your loan of $51,225.77?---Yes.
23
24
25
26
I want you to look at the bank statements
Now, just turn the pages as I ask you the
You will see on the second page of the
Then if you turn over two more pages you get to the details of
the next month's transactions?---Yes.
There you see that the bank debited your account with interest
of $284.95?---Yes.
27
You paid $285.13 on that day?---Yes.
28
Now, if you go through, and I would like you to turn over to
29
about the period starting in May 2000, if you could find
30
those pages.
31
you have found the statement for the period 8 May to
.VCH 19/03/07
Iyer 07/0269
CD
You can check by the dates. Tell me when
22
IYER XXN
1
2
8 June 2000?---Yes, that's the statement number 8 there.
You have got that.
3
4
Now, at this stage you were paying
fortnightly, weren't you?---Looks like that.
Yes, and it happened, didn't it, that from time to time your
5
payments didn't coincide with the date at which interest
6
was paid?---I never check on what date the bank is
7
charging interest.
8
going because I trusted the bank to be doing the
9
calculation of interest appropriately, I thought they
10
11
I only know that my repayments are
would plan everything on the right time.
I am asking you though when you looked at your statements you
12
would have seen, would you not, that the dates of your
13
payments were not necessarily, or frequently were not,
14
the exact date of interest charged?---It doesn't match.
15
Yes it doesn't match.
16
Yes, that's right, and when that happened the interest was
17
added to the balance, wasn't it.
18
statement number 8?---I never did this addition and
19
subtraction to see what is added and what is subtracted
20
in the balance.
21
You didn't?---No.
22
No.
23
HER HONOUR:
24
MR STRONG:
25
26
27
28
You can see that on
Are you looking at that 19 May entry of 29 cents?
No that's FID, the next one, 22 May, "interest
$930.13."
HER HONOUR:
I see that as being a different date than the
deposit of $482.31.
MR STRONG:
Is that what you are referring to?
Yes, and what I am putting to him is that it is
29
apparent from this that the $930.13 has been added to the
30
balance on that day.
31
HER HONOUR:
.VCH 19/03/07
Iyer 07/0269
I see yes.
CD
23
IYER XXN
1
MR STRONG:
Now, it is the case, isn't it, that whether you
2
looked at it or not, every month the bank statements
3
showed you that when interest was charged to the account
4
unless there was a payment on the same day the amount of
5
the interest was added to the balance?---When I
6
got
7
- - -
No, answer my questions.
Whether you looked at it or not, you
8
agree with me that is what the bank statements said?---I
9
didn't know at that time.
10
I did not ask you that.
Just listen to the question.
You
11
agree with me that whether you knew it at the time or
12
not, that is what they in fact said.
13
bank statement was telling you?---Now I understand.
That is what the
14
Now you know it, you say you didn't know it then?---Yes.
15
Now, could I ask you to produce for Her Honour the revised
16
calculation in which you came up with $1,001.89?---I had
17
to give you a copy.
18
HER HONOUR:
19
MR STRONG:
20
MR IYER:
21
22
Is there only one copy.
I think he has got more.
They told me that I have paid $1,500 more but when I
did the calculation - - HER HONOUR:
Is that the only copy of that or are there more.
23
Go to the Bar table and obtain the other copies?---This
24
is the total interest - - -
25
26
27
28
29
You will have a chance to explain the documents. All I want to
do is have them distributed at the moment.
WITNESS:
Mr Strong, do you want me to explain what I did
there?
MR STRONG:
Yes, Mr Iyer.
Please explain what you have
30
done?---Okay, I have printed with insufficient space on
31
the printer, that's why all those hash coming out without
.VCH 19/03/07
Iyer 07/0269
CD
24
IYER XXN
1
number thing, but the relevant numbers are seen in column
2
C, column D and column E.
3
a replica of what is there in the bank statement, 29
4
statements.
5
have, I have not verified the bank's calculation there.
6
Next column, column F I have just taken only the interest
7
that is in column C.
8
them
9
as the total interest the bank had debited in my account.
Column C, D and E are exactly
I have just copied exactly whatever you
For convenience I have added all of
and have drawn number 7 in column F for $20,235.80
10
I have gone to column G to include the interest
11
fluctuation, the interest fluctuation that has been - the
12
market fluctuation advice now and then by the bank. Again
13
I am sorry a couple of the dates are not very clear there
14
but the rest of the dates are clear and the percentage
15
that has been advised is clear.
16
calculated the outstanding money that has been lent me.
17
In other words the analysis here I have done is actual
18
cash that has been lent by Westpac to me.
19
cash that is lent to me I have refunded on different
20
dates, you can see in column B I have repaid certain
21
amount of money.
22
cents per dollar as Westpac money would bring so I was
23
offsetting the money that has been lent to me with the
24
money that I repaid to Westpac.
25
derived the outstanding balance at different dates
26
there.
27
on which I have made the repayment, from the date on
28
which the bank has lent to me, to the date on which I
29
made repayment I have calculated a number of days because
30
the bank calculates interest on daily balances.
31
calculated the number of days by a formula and in column
.VCH 19/03/07
Iyer 07/0269
In column A I have
Out of the
I consider my money brings the same 100
On that basis I have
I have calculated the number of days from the day
CD
25
So I
IYER XXN
1
K I have calculated the interest.
You can see the first
2
interest is $284.97 is what I have arrived at with what
3
Westpac has calculated as $284.96 because the
4
characteristic of simple and compound interest is -
5
simple interest and compound interest, in the very first
6
one they both bring the same result.
7
second month
8
simple interest.
9
projected for the entire period on the same concept and
It's only from the
onwards that interest will be less if it is
That's why I've gone ahead and
10
the total that you see on column K, row number 7, column
11
K, shows I should have paid $19,233.91.
12
should have paid but what the bank had debited is
13
$20,235.80.
14
spite of me bringing this to VCAT, when the bank was
15
sent the discrepancy I don't know why they have shown
16
that I have paid $1,500 when I have not paid.
17
saying I have paid $1,001.
18
coming to the court Westpac has shown negligence in terms
19
of doing the calculation and bringing it to tell the
20
customer what they have done.
21
take your money one cent extra.
22
will take only $1,001.89.
That's what I
It is - with regret I have to say that in
I am
So in spite of this case
Here I am, I don't want to
That's why I'm saying I
23
Now, could you just clarify this for me?---Yes.
24
The way in which you have calculated column K?---Yes.
25
Assumes that every payment you made comes off the principle of
26
the loan?---No, I assume as I mentioned in the course of
27
my discussion, I mentioned my $1 brings the same
28
100 cents and it is a legal tender and I rely that it has
29
got the same properties
30
Westpac.
31
Can I put this another way.
.VCH 19/03/07
Iyer 07/0269
CD
as the money when it comes from
Your calculations in column I
26
IYER XXN
1
reduce the amount outstanding in each case by the
2
deposits that you have made in column D, is that
3
right?---That's right.
4
So I suggest to you that what I said before is correct, you
5
have done this calculation on the basis that all of the
6
money that you've paid over the period of two years and
7
five months before the loan was paid out is to come off
8
the amount owing?---Mr Strong it can be your
9
interpretation but I have to insist that I have only done
10
the calculation as the legal tender and it is coming from
11
you, from your bank, it has got
12
the legal tender when it is going from me to your bank.
13
So it has to be offset with each other and that's how the
14
interest would be
15
16
17
18
19
the same properties as
calculated.
Now, despite that answer is it not the case that, for example,
the figure at I13, $50,940.64?---Yes.
Represents the figure immediately above it less the
$285.13?---That is correct.
That is the same for every one of those deposits?---That is the
20
reason why it goes only on those rows where there is a
21
deposit entry.
22
Yes, now is it not the result of that that no amount of
23
interest is paid on this loan until the final
24
repayment?---I'm not sure about the impact, I can only
25
see I am giving cash and you are giving cash.
26
only that portion.
27
You are not attending to my question.
I can see
I am asking you is it
28
the consequence of your method of calculation that there
29
is no interest payable until the loan is repaid?---I'm
30
not sure whether that's the consequence.
31
people have got resource enough to identify what is the
.VCH 19/03/07
Iyer 07/0269
CD
27
I think you
IYER XXN
1
reason why there
2
what I have done in the plain English manner that I
3
believe the money that I have received has got the same
4
legal properties as the money I returned back to Westpac.
5
HER HONOUR:
is a difference.
I don't understand that.
All I can tell you is
So perhaps you can just
6
answer Mr Strong's question.
How was that calculation
7
done?---The calculation is done on the basis that the
8
money lent minus the money that I repaid,
9
calculated the interest.
on that I
On the balance I calculated the
10
interest, assuming the deposit that I made back has the
11
same interest claim as when they lent it to me.
12
MR STRONG:
When do you assume that you pay the interest?---I
13
have to pay interest at the time when I have to quit the
14
loan or when I have repayments.
15
the loan I am owing as interest because whenever I have
16
gone anywhere I hire a car or when I go for Telstra
17
telephone expenses, or whatever, they provide the service
18
first and they take the payment - - -
19
I have to pay off all
So you agree with me, don't you, that in this document, the
20
spreadsheet of your calculations, there is no interest
21
paid to the bank before the date on which the loan is
22
repaid?---The bank is entitled to interest, I am not
23
refusing that the bank is entitled to interest, but in
24
that assumption I have assumed the money that I return is
25
the money that I'm paying back, the principle.
26
My proposition is correct, isn't it, there is no interest
27
payable on this spreadsheet until the end of the
28
loan?---Yes, in March when it is paid.
29
You pay all the interest?---All the interest is paid off, yes.
30
You agree, don't you, that the terms on which the bank lent you
31
the money was that you would have to pay the interest
.VCH 19/03/07
Iyer 07/0269
CD
28
IYER XXN
1
every month?---No, I have opted for a principle and
2
interest loan.
3
for interest only option.
4
If that was the case I would have opted
Could you have a look at the loan offer document again.
Can
5
you see where it says "repayments" at the bottom of
6
page 1?---Yes.
7
this loan until this loan is fully drawn you will pay on
8
each payment due date the amount specified as due on that
9
date in the written notice given to you by the lender."
10
11
12
It says "After the date you first draw
Yes?---I never received any statement from the bank saying this
is the loan due, pay now.
We will come back to that.
I never received any of this.
Now look on the second page where
13
it says "Payment due date" in the box with those words on
14
the left?---"Payments are due monthly on each payment due
15
date".
16
repayment and I have been told I am making a principle
17
and interest loan,
Yes, I have been told I have to make a monthly
interest - - -
18
Yes, look at the top of page 2?---Yes.
19
Where it sets out what the payment due date will be?---"The
20
billing statement is written on the date 14 days before
21
the payment due date.
22
from and including the previous payment due date and
23
including the calculation date.
24
billing statement from the date your loan account is open
25
to and including calculation date, the estimated interest
26
for the period" - - -
27
It will be interest for the period
In the case of the first
That is enough, you don't need to read any more.
That told you
28
very clearly, didn't it, that interest would be included
29
in every monthly payment?---Mr Strong even now I don't
30
understand what that means here.
31
able to understand what it says.
.VCH 19/03/07
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29
At this stage I am not
IYER XXN
1
It is very convenient, isn't it, that whenever a difficult
2
question pops up you plead you can't understand the
3
language of this document?---I object to your statement,
4
you are calling me a liar.
5
I am suggesting to you that a person of your qualifications and
6
experience wouldn't have any difficulty in understanding
7
these matters?---And you come here and - - -
8
9
HER HONOUR:
Mr Iyer, all I ask you to do is listen
questions and answer them.
to the
If you can answer yes or no
10
that is the best way to do it.
11
then wait until the question is finished before you
12
explain.
13
MR STRONG:
If you need to explain
I am suggesting to you, Mr Iyer, I will put it
14
again.
I am suggesting that a person with your
15
qualifications in accountancy and your experience, and in
16
fact your job at the time you entered into this loan as
17
an accountant working in a public accountant's office, a
18
person of your experience and qualifications would have
19
no difficulty in understanding the concepts that are
20
explained in this document?---No, because I was changing
21
my career from being a teacher to an accountant for the
22
first time when I signed this.
23
months old as an accountant.
24
accountant, I was only a teacher.
I was not even three
Before that I was not an
25
A teacher of what?---Teacher of computing and teacher
26
Australian law and teacher of accounting.
27
of
Thank you, now coming back to your calculation sheet where you
28
worked out the $1,000.
29
interest, isn't it, that it is interest calculated on the
30
reducing principle but payable at the end of the loan
31
term?---That's all I have been taught Mr Strong.
.VCH 19/03/07
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CD
It is your notion of simple
30
IYER XXN
1
That is what you have been taught.
So, you would deny would
2
you that the idea of simple interest would include
3
interest which was calculated at the same rate but was
4
payable monthly?---I have not been taught that way, that
5
there is a calculation like that, unless there is a new
6
method that has been invented by Westpac. I haven't
7
learned that.
8
9
It would be the case though would it not, that in the absence
of payments of principle interest payable monthly and
10
interest payable annually would be the same?---Could you
11
repeat that please?
12
13
14
If you have a loan where there is no reduction of
principle?---Yes.
And on one loan interest is payable at 6 per cent, payable
15
monthly, and on the other it is 6 per cent payable at the
16
end of the year, the amount of interest will be the same
17
won't it?---No.
18
Yes it will?---No, because you have to recognise that the money
19
that is being paid back by the borrower has the same
20
properties as the money that is being lent by the lender.
21
On that basis the interest calculated on a monthly basis,
22
when a person has been paying the money back, calculated
23
according to the end of the month balance at the end of
24
the year will be far different to interest if you
25
calculate straight on the principle that is lent for one
26
year.
27
Yes and that is a function merely of the agreement between the
28
borrower and the lender, that interest shall be payable
29
monthly, isn't it?
30
had not been told to pay interest monthly.
31
to pay principle and interest monthly.
.VCH 19/03/07
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That is the consequence of that?---I
31
I'd been told
I have never been
IYER XXN
1
told - I repeat the point again, if that was the case I
2
would have chosen the interest only option which has been
3
offered to me that time and I didn't choose the interest
4
only option because I endeavoured to pay the principle
5
than paying the interest first.
6
Did that interest only option give you the opportunity to pay
7
no interest at all until the end of two years and five
8
months?---I didn't even consider it.
9
that offer at all.
10
11
12
I didn't consider
You didn't consider it?---Because I wanted to pay only the
principle and interest repayment.
You said you finally came to work out the amount the bank had
13
charged you in September 2006.
14
and a half after you had repaid the loan?---Yes.
15
Now that was four years
What was it that happened in about September 2006 that caused
16
you to choose to do that?---Is this question at all
17
relevant for me to answer?
18
I am asking it?---You are asking but do I have to answer this?
19
HER HONOUR:
I will ask you to answer the question please.
20
Unless I interrupt Mr Strong you can presume that his
21
questions are relevant.
22
MR STRONG:
So what happened that made you come to do that
23
in September 2006?---I had another loan with another bank
24
and I find that I keep paying the money but my loan
25
amount doesn't keep going down.
26
down, it doesn't go down. I just wanted to find out what
27
is really happening here, what is going on.
28
down, I prepared an Excel spreadsheet.
29
know why I took first Westpac, because that's the first
30
company from where I took the loan, because I also
31
transferred the loan so I knew that it is a starting
.VCH 19/03/07
Iyer 07/0269
CD
32
As I expected it to go
Then I sat
First - I don't
IYER XXN
1
point and end point in that company loan, so I took the
2
bank statements, checked to see whether I can work out
3
how the interest is affecting my loan balance there.
4
Then I found I had to work out how that has been
5
calculated if my assumption of what I understood from the
6
document as simple interest is correct.
7
and I found I ended up when I prepared the Excel sheet
8
for the entire period of 25 years, assuming what would
9
have happened if I'd stayed with Westpac for 25 years I
10
came out with a figure that I would have ended up paying
11
51 per cent more than what I was supposed to be paying.
12
That's the starting point.
13
I went through
So you are asking Her Honour to accept that all that time from
14
1999 right through to September 2006 you thought that the
15
bank calculated your interest?---Simple interest.
16
On the basis that you say it should have?---I honestly believe,
17
I sincerely believe, and I have very high regard for
18
Westpac for having given me the loan to make my dream
19
come true.
20
very much when I found something opposite.
21
So I trusted them very much and I was hurt
But you accept, don't you, that the documents that Westpac
22
provided to you at the time of your loan did state the
23
way in which Westpac was going to calculate the
24
loan?---That's exactly what I'm saying again.
25
not comprehend, I cannot understand - - -
26
27
28
I am not asking you what you understood.
I could
I am asking you what
you now understand?---Yes.
You now understand that the way in which Westpac described its
29
calculations in those documents is the way that it did in
30
fact calculate the interest?---When I find somebody has
31
taken some money from my pocket, later on they come and
.VCH 19/03/07
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CD
33
IYER XXN
1
2
say why they took it?
No, you are not answering my question.
Do you accept that the
3
documents that you signed and took away with you on
4
11 October accurately described the way in which Westpac
5
does in fact calculate its interest?---It doesn't, it
6
doesn't describe what I understood Westpac is doing.
7
I know what you understood.
I am asking you now to speak from
8
your present knowledge?---Correct.
9
even now I told you I cannot understand that portion that
10
On the present moment
you are talking about on page 2.
11
But you do understand the way in which Westpac calculated the
12
interest?---No I find that Westpac has calculated
13
interest in a compounding way than in simple interest.
14
I understand that, and there is nothing in the documents that
15
is different from the way in which Westpac has actually
16
calculated the interest, is there?---I repeat again, I
17
can't still understand that is the way it is done because
18
of the fact I still don't understand what is on page 2.
19
MR STRONG:
20
HER HONOUR:
I have no further questions.
The loan offer document, there is a paragraph that
21
starts "repayments."
There is a paragraph you have been
22
taken to that starts "repayments" and on the next page
23
there are five dot points.
24
points don't you understand?---The first dot point says
25
that they wanted me to start - but I don't know what is
26
there to start. Like when I read the entire paragraph I
27
really cannot comprehend what that whole paragraph means
28
there.
Now, which of those dot
29
So you don't understand any of those dot points?---Well I don't
30
have the ability to comprehend that it means compounding.
31
I am not interested in what it is called, it can be called
.VCH 19/03/07
Iyer 07/0269
CD
34
IYER XXN
1
anything, but what is it in those paragraphs that you
2
don't understand?---The way that they are saying how they
3
will calculate the first billing statement and the
4
calculation date. There is no calendar that has been
5
given to me as a calculation date and there is no
6
estimated interest that has been told to me as estimated
7
interest.
8
understand what that ongoing amounts means.
9
It says about ongoing amounts - I don't
Are there any other matters you want to put to me arising out
10
of the things that you have been asked by
11
Mr Strong?---Sorry, can you please repeat that?
12
Are there any other matters that you want me to take into
13
account in making my decision today?---Yes, the fact that
14
the document not clear for me to understand in the
15
beginning and this mention that in 2006 September, that's
16
four years after I repaid the loan, I am in front of you
17
trying to explain this, if this has been done before I
18
signed the loan document I don't think I had to spend any
19
time to waste your time or my time or their time.
20
All right, can I perhaps just ask you this.
Just to make this
21
quite clear - you have set out in some earlier documents
22
on the file a claim which you had for several different
23
sums of money.
24
it just the $1,001.89?---I pursue all the claims that I
25
mention in the five page document I have sent as a
26
summary.
27
28
29
30
31
Are you still pursuing those claims or is
Perhaps you could go through with me those amounts?---On page
2.
What is the date of that - right, well I can't see there any
amounts?---On page 3.
Page 3, all right.
.VCH 19/03/07
Iyer 07/0269
CD
So are you still pursuing these
35
IYER XXN
1
amounts?---I can probably point out to you that on page
2
3, first the sentence up to 51.314 per cent, up to that
3
much, can be substituted with $1,001.89.
4
So, instead of $20,331.34 the amount there should be
5
6
$1,001.89?---No, $20,331.34 is the total interest I paid.
Yes?---But I have calculated - on that I multiplied 51.31 per
7
cent which was an average percentage I worked out, which
8
was wrong and that should not be $10,432.89, that should
9
be exact amount as how much I paid more in those two
10
years' time, which is $1,001.89.
11
So instead of $10,432.89?---Yes, it should be $1,001.89.
12
So it is $1001.89 cents.
13
You said that it was a joint loan
with your wife?---Yes.
14
Is your wife here today?---She is waiting outside.
15
Do you have her authority to claim that amount on her
16
17
behalf?---Yes.
You say legal costs in bringing this matter before you,
18
$553.60.
How have you worked that out?---That's what I
19
pay to VCAT.
20
To?---VCAT, the Tribunal.
21
So that is payments of fees to VCAT?---To the Tribunal yes.
22
All right, now how do you justify the balance of the sum?
23
Are
you still claiming this compensation?---Yes.
24
For the torture, trouble and turmoil?---Yes.
25
How do you claim that?---During the period of this repayment of
26
loan I have gone through so many different difficulties
27
in my life which I don't want to mention here.
28
a private part of my life, but it had the potential to
29
cost so much of a person's life.
30
any of those, I committed to paying the monthly repayment
31
I paid, and in 2006 September when I work out I find that
.VCH 19/03/07
Iyer 07/0269
CD
36
They are
I never worried about
IYER XXN
1
even $230 for water when I had to pay, I had difficulty
2
to pay once upon a time, and I find it's because of the
3
error the bank has been committing and has not been
4
disclosed and the amount of skill that is required even
5
now at this stage, I have spoken to hundreds of people
6
and they cannot understand that the bank is charging
7
compound interest.
8
9
If I might just interrupt you there.
You say you were charged
$1000-odd more over that period of two years?---Correct.
10
You are claiming $1 billion in general damages?---Yes - - -
11
You think that makes sense?---In terms of the skill level that
12
is required to bring it to your attention to make things
13
clear, I don't think today there is anybody on the street
14
who can bring this clear to this court or any other court
15
in a clear manner to make a person understand there is a
16
hidden message in their contract of compound interest.
17
They are not clear, they are not straightforward.
18
are having false, misleading and deceptive conduct.
19
They
Is there anything else you want to say to me as to how that
20
claim is calculated.
21
upon in relation to that claim?---In terms of the number
22
of such cases, the number of people affected, the amount
23
of impact to the society and everything added together,
24
since I brought this to light, since I brought it to the
25
attention of the court I believe I am worthy of making it
26
clear.
27
HER HONOUR:
28
MR STRONG:
Any other matters you want to rely
Is there anything arising out of that Mr Strong?
No your Honour, but in answer to an earlier
29
question of your Honour's he said he was still pursuing
30
all the matters on page 2 of his 1 March document.
31
didn't take him to item 2 of the claim because he didn't
.VCH 19/03/07
Iyer 07/0269
CD
37
I
IYER XXN
1
give any evidence about compliance with the
2
mandatory - - -
3
HER HONOUR:
This is a case about Mr Iyer and what he has lost,
4
it is not a case about the general community or anyone
5
else in the community who may have entered into some
6
contracts with Westpac of various kinds so I would
7
perhaps indicate that I am not going to see as relevant
8
any evidence about non-compliance with mandatory
9
comparison rate legislation unless it impacts on this
10
case.
11
There are no issues on page 2 that you want to give evidence
12
about?---Yes, even now when I want to buy another
13
property I want to look at the interest rate quoted by a
14
different bank and the mandatory comparison rate that is
15
quoted still doesn't incorporate the cost of the loan
16
which is including the compounding rate so it is still
17
misleading a person to go ahead and sign a loan agreement
18
so that is what I brought under section 9 of the
19
statutory Act.
20
21
22
HER HONOUR:
Yes?---It has got a likely potential to mislead a
person still.
MR STRONG:
Mr Iyer, do you base the assertion that the current
23
advertisement of mandatory comparison rates doesn't
24
reflect the true cost of the loan on calculations of the
25
kind that you did for your own loan?---Yes, it doesn't
26
reflect correctly the rate.
27
So those are the calculations in which you have done sample
28
loans of different amounts and different periods and you
29
have worked out the difference between the rate quoted by
30
the bank and the true rate if the interest was all
31
postponed until the end of the loan period?---Can you
.VCH 19/03/07
Iyer 07/0269
CD
38
IYER XXN
1
repeat that please, my concentration has - - -
2
You have done calculations, like the one that we discussed
3
earlier, for different amounts and different
4
figures?---Yes.
5
Different loans?---Yes.
6
Based on the proposition that the interest is not to be payable
7
until the end of the loan?---That's not the proposition I
8
had.
9
properties as your money has got and on that basis I
I had the assumption that my money has got the same
10
offset the money I paid in terms of the money that you
11
lent.
12
13
14
15
16
Yes and that means that all the money you paid should be taken
off what you owe?---Yes.
And then when you repay the loan you can repay the interest at
that time?---Yes.
That's right.
Now can you have a look please at this document.
17
I have given you an extract from the Consumer Credit
18
Regulations and it is Regulation 33F. Do you see
19
that?---Yes.
20
Could you have a look at page 39 starting with the letter 3,
21
"the comparison rate is given by the following
22
formula"?---Yes.
23
Do you see the formula there?---Yes.
24
Do you see the way in which the elements of that formula are
25
defined?---Do you think I understand any of the formula?
26
I am asking you first, do you see that NRJTAJ, all that and so
27
28
on?---Yes.
When did you first see that formula?---By the courtesy of
29
Westpac last week on 13 March, that's the first time I
30
have got this.
31
Westpac on 16 November or whenever I have been informed I
.VCH 19/03/07
Iyer 07/0269
CD
In fact in my discussion with Tim Goss of
39
IYER XXN
1
have requested him to send only one line of information
2
something like this saying that the bank is charging
3
compound interest as per some legislation, that is all I
4
asked.
5
Never mind your conversation with Mr Goss.
You have told Her
6
Honour that the first time you saw this formula was last
7
week, is that right?---On 13 March yes.
8
So none of the calculations that you made for the purposes of
9
your assertion that the bank isn't complying with the
10
mandatory comparison rate legislation were made using
11
this formula?---It is still not plain because the
12
legislation says compounding frequency is supposed to be
13
disclosed and I don't see any of your advertisements
14
disclosing compounding frequency as compounding monthly,
15
compounding quarterly, compounding half yearly or
16
compounding annually.
17
Nothing is being disclosed.
I am sorry Mr Iyer, what are you referring to?---33F, ss.2
18
"Comparison rate must be calculated as a nominal rate per
19
annum together with the compounding frequency in
20
accordance with the section."
21
when your frequency is every fortnight, if you compound
22
every fortnight the interest rate is different. If you
23
compound every month the interest rate is different, if
24
you compound every quarter, different, half-yearly
25
different, annually different, in spite of the fact the
26
annual rate you quote is totally different.
27
The compounding frequency
Yes, now Mr Iyer, you have put forward to the Tribunal the
28
proposition that a particular document that you extracted
29
from Westpac's website - do you know the document to
30
which I refer?---Yes, I think A6 you are talking about.
31
MR STRONG:
It is A6 in your bundle.
.VCH 19/03/07
Iyer 07/0269
CD
40
Does your Honour have
IYER XXN
1
that?
2
HER HONOUR:
3
MR STRONG:
Yes, I think I do yes.
It is a two page document, one is called simple
4
interest compound interest conversion table and the other
5
is a printout from a page on the website?
6
HER HONOUR:
7
MR STRONG:
8
9
Yes.
Now Mr Iyer, you say that on your calculations the
comparison rates shown on that website are wrong?---Yes.
Yes.
But your calculations were not made using the formula in
10
these regulations, were they?---But using the - using the
11
information - - -
12
Never mind about that, I am asking you a question.
Did you
13
make your calculations using the formula in the
14
regulations?---That part I cannot understand.
15
You can't understand it.
So you have no idea whether Westpac's
16
disclosures on the website do or do not comply with that
17
formula, have you?---I know it is not compliant with the
18
condition.
19
20
Never mind that, I am asking you about the formula?---I'm not
sure.
21
You don't know, do you?---No.
22
And you couldn't know because you don't understand the
23
formula?---No.
24
MR STRONG:
No further questions.
25
<(THE WITNESS WITHDREW)
26
HER HONOUR:
27
MR IYER:
Mr Iyer, is there any other evidence.
I have a request that if VCAT can seek expert opinion
28
on the Excel projection I have done I am prepared to bear
29
the cost for the Excel projections to show the compound,
30
the alleged situation between compound and simple
31
interest because simple interest is quoted and applied.
.VCH 19/03/07
Iyer 07/0269
CD
41
IYER XXN
1
It has got a certain character and if it is compound
2
interest as long as the term of the loan the actual
3
effective rate is much higher and if the frequency of
4
compounding is very quick the interest rate that results
5
is very high. For a lower term, if we take a loan for
6
five years, it is beneficial to take a loan for five
7
years at a higher rate that is quoted by the bank,
8
compounding monthly, than taking a loan for 25 years,
9
interest rate quoted lower but effective interest rate
10
comes to, compounding comes to the highest rate of
11
interest they are paying.
12
table based on whatever is there, as in A6, I have
13
provided evidence of one of the authors of a textbook
14
here who says in theory that is what is the impact.
15
Excel I have proved the theory is correct.
16
HER HONOUR:
Since I have derived this
In
But Mr Iyer, what I need to decide is whether
17
Westpac owes you any money by reason of the contract that
18
you took out with them.
19
calculations and the calculations that you have provided
20
me with are calculations which, if the way you calculate
21
the loan is correct, there is $1,001 difference between
22
what Westpac has charged you and what you say you
23
owe?---Yes.
24
You say you have done
Now there is no value in an expert coming along because you
25
have done this calculation yourself.
26
whether or not you should be entitled to make this
27
calculation given that the written documents you have
28
signed with Westpac refer to the calculation being made
29
in another way.
30
going to help me determine that.
31
matters you want to put or any other evidence you want to
.VCH 19/03/07
Iyer 07/0269
CD
The question is
There is no expert evidence that is
42
Are there any other
DISCUSSION
1
bring to my attention?
2
MR IYER:
Not that I can think of, offhand.
3
HER HONOUR:
4
MR STRONG:
Mr Strong.
Your Honour Mr Iyer bases his claim on the
5
proposition that at the time that he entered into his
6
loan contract with Westpac he was under a misapprehension
7
as to the way in which Westpac would calculate interest
8
and that he believed, contrary to the terms of the
9
document, that interest on his loan would be payable
10
calculated on the declining balance of principle to which
11
all his monthly payments would be applied, and payable
12
once he had paid off the principle.
13
There is nothing in Westpac's documents which would
14
have induced such a belief in him. The only thing he
15
could say is that there was an omission from Westpac's
16
documents such that he should have been but wasn't
17
disabused of this particular notion.
18
Our first submission is that the loan offer letter
19
and the "You and Your Loan" terms and conditions booklet
20
do make it abundantly clear that interest on the loan
21
will be charged on daily balances and debited to the
22
account monthly and that payments to the account would be
23
applied to any unpaid interest before the principle is
24
reduced.
25
disabused of his different idea by these documents,
26
whether Westpac is to be held responsible for that,
27
because it could only be if Westpac was responsible for
28
that, that there could be any suggestion of either
29
misleading or deceptive or unconscionable conduct.
30
31
The question is whether if Mr Iyer was not
Mr Iyer says that he read these documents on the day
that he got them, even if not before he signed them, and
.VCH 19/03/07
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CD
43
ADDRESS (MR STRONG)
1
he acknowledged as was pointed out in the loan offer
2
letter at page 7 that he could have withdrawn from the
3
loan contract at any time up to the first draw down which
4
took place 11 days later.
5
happy with the documents and wanted to go ahead but he
6
says here that he didn't understand them.
7
submission your Honour should have considerable
8
reservations in accepting that his level of understanding
9
or lack of it was as he has said today.
He acknowledged that he was
In my
It seems quite
10
extraordinary that a person who had, up to three months
11
before he had taken the loan, been a person who was
12
teaching subjects such as law and accounting and business
13
management I think he said?
14
HER HONOUR:
15
MR STRONG:
Personal management.
Personal management, would have the difficulties
16
understanding the quite plain English, even if technical,
17
language of these documents.
18
that your Honour accepts that he didn't understand these
19
documents and not understanding them, nevertheless,
20
thought that they were fine then in my submission your
21
Honour could not find that Westpac was guilty of any
22
misleading or deceptive or unconscionable conduct in
23
preparing these documents in the way that it has, putting
24
forward the explanations that it did and expecting that a
25
person who did not understand them when they read them
26
would either get advice or raise the question, but
27
otherwise expecting that as best that could be done the
28
matter has been plainly and clearly explained to the
29
borrower.
30
31
But even if it is the case
It is quite true, as the bank officer said when the
documents were signed, that these were standard terms.
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44
ADDRESS (MR STRONG)
1
Mr Iyer accepted them as such, he read them after he
2
signed them and he could have come back and complained or
3
said he didn't understand them.
4
things and the bank, in my submission, is not to be held
5
responsible if you accept that he didn't.
6
He did none of those
The second submission is that Mr Iyer has not even
7
demonstrated that the $1,000 is actually a loss.
What he
8
said was that if he had known about the way in which the
9
bank would calculate the interest he wouldn't have gone
10
ahead with this loan, he would have postponed purchasing
11
the property and building a house and saved up a bigger
12
deposit.
13
having gone ahead and bought the property in 1999 and
14
sold it in 2002 compared with whatever else he was going
15
to do.
16
terms offered by Westpac where he has given evidence that
17
he could have got a loan on the terms that he likes from
18
somewhere else so we submit that in terms of the High
19
Court's decision in Marks v GIO which deals with the
20
distinction between actual and expectation losses, and to
21
which attention we drew to Mr Iyer in a letter last week,
22
he has not established even that the $1,000 is a loss.
23
Well, he has to show that he is worse off for
It is not a case where he took the loan on the
His claim for costs will fall to be decided if and
24
when we have an argument whereby he applies for his
25
costs.
26
in two short points.
27
proceeding in which he is seeking damages pursuant to
28
section 159 of the Fair Trading Act.
29
provision, Your Honour, which allows a person who has
30
suffered loss, injury or damage because of a
31
contravention of a provision of the Act to recover the
.VCH 19/03/07
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His claim for exemplary damages can be answered
CD
The first of them is that this is a
45
Section 159 is the
ADDRESS (MR STRONG)
1
amount of that loss or damage and they can do so in a
2
court or in this Tribunal.
3
authorise exemplary damages.
4
Section 159 does not
Can I hand up to your Honour and provide to Mr Iyer
5
some authorities.
6
authorities but I just want to point to - No. 6 is the
7
decision of Justice Wilcox in the Federal Court in Nixon
8
v Phillip Morris Australia and at paragraphs 99 to 103
9
His Honour deals with a submission that exemplary damages
10
are not recoverable under sections 82 or 87 of the Trade
11
Practices Act.
12
159 and 158 of the Fair Trading Act.
13
concludes, "I accept it may be possible in an appropriate
14
case to recover aggravated damages as loss or damage
15
within the meaning of section 82 or 87, however it seems
16
to me clear that exemplary damages cannot fall into that
17
category.
18
it is not open to any of the applicants or group members
19
to recover exemplary damages in relation to any
20
contravention of section 52 that they may prove."
21
I don't want to go in detail to the
Those two sections are the equivalent of
At 103 his Honour
I am of the opinion that in the present case
Then at tab 7 there is the decision of the New South
22
Wales Court of Appeal in a case called Harris v Digital
23
Pulse.
24
need to copy it all.
25
of Appeal delivered a unanimous judgement rejecting the
26
proposition that - well a majority judgement perhaps -
27
rejecting the proposition that there could be exemplary
28
damages for a breach of fiduciary duty and at page 334 of
29
the report at paragraph 186 it says, "The Trade Practices
30
Act provides no analogy because punitive remedies are
31
excluded by the terms of section 82" and they cite the
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It is a very long decision, we probably didn't
CD
This is a case in which the Court
46
ADDRESS (MR STRONG)
1
amount of the loss and damage and, "Section 87 compensate
2
for or prevent or reduce loss and damage" and they cite
3
Nixon v Phillip Morris Australia as authority for that.
4
That is, I think, Justice Heydon speaking in that
5
particular - no, President Mason.
6
The language of sections 159 and 158 is relevantly
7
similar to the Trade Practices Act.
Section 159 refers
8
to recovering the amount of the loss or damage.
9
158 refers to an order that the defendant pay the amount
Section
10
of any loss or damage suffered by the injured person.
11
That is sub-paragraph 2(e).
12
The second point to make is that in my submission
13
section 108 of the Fair Trading Act which gives the
14
Tribunal the power to hear and determine a consumer and
15
trader dispute doesn't have the effect that the Tribunal
16
is in a different position to the court and can award
17
exemplary damages.
18
referred to specifically in 2B(2), however in my
19
submission sub-s.(2) is a series of powers in aid of the
20
jurisdiction conferred by sub-s.(1) and the Tribunal is
21
to hear and determine a consumer and trader dispute under
22
sub-s.(1) according to law.
23
underlying rights, legal rights and liabilities of the
24
parties give rise to a right to a right to exemplary
25
damages that the Tribunal's power to award them is,
26
effectively, enlivened.
27
It is true that exemplary damages are
It is only where the
There is some debate amongst members of the
28
Tribunal, Your Honour, about to what extent the Tribunal
29
is found to herein determine its disputes according to
30
the law.
31
references.
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I have given your Honour a couple of
CD
There is a decision of the learned
47
ADDRESS (MR STRONG)
1
President, Justice Morris, at tab 13 in which he suggests
2
that perhaps the Tribunal is not required to hear and
3
determine disputes according to law.
4
second volume of authorities.
5
from 33 to 41 and his Honour at 41 says, "Sections 108
6
and 109 seek to overlay the common law and actions based
7
on contravention of statute with substantive principles
8
based on fairness pursuant to which certain disputes may
9
be resolved."
That is in the
The relevant passage is
In my submission his Honour intends by
10
that to say that the Tribunal's jurisdiction under
11
section 108 is otherwise than to hear and determine
12
disputes according to law and we respectfully disagree
13
with him.
14
It is true that 109 explicitly gives the Tribunal
15
power similar to section 158 to adjust legal rights by
16
varying a contract for example but the indications
17
would suggest are that when you look at the definition of
18
consumer and trader dispute at section 107(2) it refers
19
to disputes or claims in negligence, nuisance or
20
trespass, for example relating to the supply of goods, we
21
are talking legal terms of art there, and courses of
22
action that are known to the law.
23
we
The powers that are exercised under section 109 are
24
exercisable in the course of determining a consumer
25
dispute or a trader trader dispute which are subsets of
26
consumer trading disputes, and there is specific power to
27
vary contracts and there is power to make any order it
28
considers fair but in our submission whatever limits
29
there are on that power it has got to be done in the
30
context of hearing and determining the dispute according
31
to law and possibly, if fairness calls for it, adjustment
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48
ADDRESS (MR STRONG)
1
2
of legal rights and perhaps that could be done.
HER HONOUR:
So if it is a statutory remedy you say that
3
exemplary damages won't apply, it will only apply if it
4
is a claim in negligence, nuisance, trespass in which
5
there is a right under the common law for exemplary
6
damages?
7
MR STRONG:
8
HER HONOUR:
9
10
Yes.
There is no right, you say, to exemplary damages
if it is a statutory breach?
MR STRONG:
Well not this particular statutory breach because
11
the language of it is confined to recovering actual loss
12
and damage and the definition of exemplary damages is
13
that it is not actual loss, it is an award made to punish
14
the defendant.
15
HER HONOUR:
Of course it would be open to parliament to
16
provide legislation which would include the right to
17
claim exemplary damages as part of a statutory breach?
18
MR STRONG:
19
HER HONOUR:
Yes.
But given the authorities you have referred me to
20
and given that there is no right in the sections under
21
which this claim is made for exemplary damages, you say
22
that 108(2)B(ii) must be confined to the claims in
23
negligence, nuisance or trespass that are referred to in
24
paragraph - - -
25
MR STRONG:
Yes, or possibly other common law claims where
26
there is - like defamation.
27
abolished now, defamation, but if it hadn't, maybe that.
28
HER HONOUR:
29
MR STRONG:
Perhaps it has been
Yes.
But wherever a court could award exemplary damages
30
then say too could the Tribunal, but the Tribunal hasn't
31
been liberated from the law to the extent it can go and
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ADDRESS (MR STRONG)
1
create a new classes of case in which exemplary damages
2
can be awarded.
3
The last point we make about exemplary damages is
4
that Mr Iyer has given no evidence at all which would
5
even remotely begin to justify any award of exemplary
6
damages, let alone the amount he is claiming.
7
We have provided Your Honour with two cases on
8
exemplary damages, both cited in the High Court of
9
Australia.
They are the first two cases in volume 2 of
10
the authorities.
11
and in that case the court declined to follow a decision
12
of the House of Lords which confined exemplary damages to
13
certain categories.
14
which exemplary damages could be awarded and the accurate
15
flavour of it is found, for example, in the judgement of
16
Justice Taylor at 129 at the bottom of the page.
17
that the law relating to exemplary damages both in
18
England and in this country was that "Damages of that
19
character might be awarded if it appeared that, in the
20
commission of the wrong complained of, the conduct of the
21
defendant had been high handed, insolent, vindictive or
22
malicious or had in some other way exhibited a
23
contumelious disregard of the plaintiff's rights."
24
expression that I have just said, "contumelious disregard
25
of the plaintiff's rights" is adopted as a good or
26
reasonable summary by the other members of the court.
27
The first is Uren v John Fairfax & Sons
They re-stated the law in cases in
It says
That
In the subsequent decision which is at tab 9 of the
28
authorities, Lamb v Kotongo, the High Court again had
29
occasion to consider the availability of exemplary
30
damages and in a joint judgement the court held that - if
31
one goes to the discussion starting at page 7 of the
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50
ADDRESS (MR STRONG)
1
report, at the bottom of page 7 the court adopted and
2
confirmed the position that was adopted in Uren v John
3
Fairfax & Sons.
4
their Lordship's confined their remarks (indistinct) what
5
was said by this court in Uren v John Fairfax not so
6
restricted are the well settled judicial approach in
7
Australia that extends exemplary damages to a wider range
8
of torts."
9
At the top of page 8, "Notwithstanding
Then they cite with approval passages above on page
10
8, Mayne and McGregor on damages.
11
called punitive, vindictive, exemplary and even
12
retributory damages.
13
conduct of the defendant merits punishment which is only
14
considered to be so where his conduct is wanton as we
15
have discussed as fraud, malice, violence, cruelty,
16
insolence and the like as it is sometimes put where he
17
acts in contumelious disregard of the plaintiff's
18
rights."
19
"Such damages are
They can apply only where the
Now that is the law of the country and there is no
20
evidence of anything of the kind here.
21
said is if your Honour though we had deceived Mr Iyer in
22
any way, is that we failed to appreciate that he didn't
23
understand our documents.
24
HER HONOUR:
25
MR STRONG:
All that could be
Thank you.
Mr Iyer has said in his claim document that he
26
wants an injunction restraining Westpac or ordering
27
Westpac to cease its lending activities in Victoria.
28
HER HONOUR:
That hasn't been mentioned today.
I don't think
29
it is necessary for you to go into that matter unless an
30
application is made.
31
MR STRONG:
In that case there are no further submissions.
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ADDRESS (MR STRONG)
1
HER HONOUR:
I will adjourn the court now until 10.30 tomorrow
2
morning.
3
will be 10.30 tomorrow morning.
4
ADJOURNED UNTIL TUESDAY 20 MARCH 2007
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The Tribunal list might say 10 o'clock but it
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52
ADDRESS (MR STRONG)