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Fox v Westpac Banking Corporation

Fox v Westpac Banking Corporation

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Case Copied 15 October 2025 53 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

GROUP PROCEEDINGS LIST

S ECI 2020 02946

ALANNAH FOX	First Plaintiff
BRIDGET NASTASI	Second Plaintiff
-and-
WESTPAC BANKING CORPORATION (ACN 007 457 141)	First Defendant
ST GEORGE FINANCE LIMITED (ACN 001 094 471)	Second Defendant

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JUDGE:	Harris J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2025
DATE OF JUDGMENT:	15 October2025
CASE MAY BE CITED AS:	Fox v Westpac Banking Corporation
MEDIUM NEUTRAL CITATION:	[2025] VSC 643

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PRACTICE AND PROCEDURE - Group proceeding – Application for approval of settlement – Whether confidentiality orders should be made – Whether settlement distribution scheme is fair and reasonable – Settlement distribution between classes of group members – Deductions from the settlement fund – Whether group costs order should be varied – No variation to group costs order - Settlement approved – Supreme Court Act 1986 (Vic) Part 4A, s 33V, s 33ZDA.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D Fahey	Maurice Blackburn
For the Defendants	Ms C Hamilton-Jewell	King & Wood Mallesons

TABLE OF CONTENTS

Background......................................................................................................................................... 1

The nature of the claims................................................................................................................... 1

Procedural background..................................................................................................................... 5

Group Costs Order........................................................................................................................ 5
Opt out and registration............................................................................................................... 6
Mediation....................................................................................................................................... 6
Trial and settlement...................................................................................................................... 6

Reinstatements and late registrations............................................................................................ 7

Confidentiality orders....................................................................................................................... 8

Settlement approval - Applicable principles................................................................................ 9

Proposed settlement........................................................................................................................ 10

Group member eligibility.......................................................................................................... 13
Aggregate loss calculation......................................................................................................... 15
Loss assessment formula............................................................................................................ 16

Objections to settlement................................................................................................................. 18

Was the settlement fair and reasonable?..................................................................................... 20

Fairness inter partes..................................................................................................................... 20
Fairness inter se............................................................................................................................ 21
Objections of group members relating to differential treatment of group members with ‘mistake’ claims only.................................................................................. 22
Conclusion – fairness and reasonableness inter se....................................................... 27

Other relevant matters................................................................................................................ 27

Deductions from the settlement sum........................................................................................... 28

Group costs orders...................................................................................................................... 28
Considerations on whether a group costs order should be varied............................ 28
Reasons for making the group costs order.................................................................... 29
Plaintiffs’ submissions...................................................................................................... 30
Conclusion – there is no reason to vary the group costs order................................... 31

Scheme Administrator................................................................................................................ 33
Appointment of Scheme Administrator......................................................................... 33
Settlement administration costs...................................................................................... 34

Plaintiffs’ reimbursement payments........................................................................................ 34

Conclusion......................................................................................................................................... 36

ANNEXURE A.................................................................................................................................... 1

HER HONOUR:

Background

The plaintiffs, Ms Alannah Fox and Ms Bridget Nastasi commenced this group proceeding on behalf of group members who entered into car loans with either of the defendants, Westpac Banking Corporation or St George Finance Limited (Westpac’s wholly owned subsidiary), as arranged through car dealers. The plaintiffs and group members claimed to have suffered loss as a result of undisclosed ‘flex commissions’ paid by the defendants to the car dealers based on the difference between the base rate of interest the defendants would accept on the loans and the interest rate set by the dealers at their discretion. The ‘flex commissions’ were claimed to have the effect of inflating the interest rate paid on the loan by group members.

The parties have agreed to settle this proceeding for the settlement sum of $130 million, which is inclusive of legal and settlement administration costs as well as the amount…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] VSC 643
Decision Date: 15 October 2025

CaseChat Overview and Summary

- Parties, nature of dispute, and court
The case of Fox v Westpac Banking Corporation was heard in the Supreme Court of Victoria by Justice Harris. The plaintiffs, Ms Alannah Fox and Ms Bridget Nastasi, initiated a group proceeding on behalf of individuals who entered into car loans with either Westpac Banking Corporation or St George Finance Limited. The plaintiffs and group members claimed to have suffered losses due to undisclosed 'flex commissions' paid by the defendants to car dealers. These commissions were based on the difference between the base rate of interest accepted by the defendants and the interest rate set by the dealers. The plaintiffs alleged that these commissions inflated the interest rates paid by the group members.

- Legal issues
The primary legal issues for the Court to decide were: (a) whether the settlement sum was fair and reasonable considering the risks and the claims of the plaintiffs and group members; (b) whether the settlement distribution was fair and reasonable both between the parties and among group members; and (c) whether the proposed deductions from the settlement sum for group costs, settlement administration costs, and plaintiff compensation were appropriate.

- Court's reasoning and outcome
Justice Harris approved the settlement and its proposed distribution, finding it to be fair and reasonable. The Court considered various factors, including the complexity of the litigation, the stage of the proceeding, the likelihood of establishing liability and loss, and the terms of any advice received from counsel. The Court was satisfied that the settlement sum was within the appropriate range and the distribution of the sum between the two classes of group members was fair and reasonable. The Court also concluded that the deductions sought from the settlement sum were appropriate and that the process by which the settlement was reached satisfied the relevant procedural fairness requirements. The Court made orders approving the settlement, dismissing the claims, and appointing Maurice Blackburn as the administrator of the settlement distribution scheme. The Court also made confidentiality orders regarding certain material filed in support of the settlement approval application.

- Final orders
The final orders included approval of the settlement, dismissal of the claims, release of the defendants from the claims, approval of deductions from the settlement sum for legal costs, administration costs, and reimbursement payments to the plaintiffs, appointment of Maurice Blackburn as the Scheme Administrator, and orders for reporting and dismissal of the proceeding upon completion of the settlement distribution. The Court also made confidentiality orders and orders for the registration and reinstatement of group members.

Orders