Westpac v Lee - [2020] VSC 291

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST – DIGBY J

Not Restricted

S ECI 2019 5783

WESTPAC BANKING CORPORATION (ABN 33 007 457 141)	Plaintiff
v
ANDI TUAN LEE & ORS	Defendants

---

JUDGE:	Digby J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	22 May 2020
CASE MAY BE CITED AS:	Westpac v Lee
MEDIUM NEUTRAL CITATION:	[2020] VSC 291

---

PRACTICE AND PROCEDURE – Application to strike out Statement of Claim – Plaintiff’s foreshadowed intention to amend its Statement of Claim and application for time to amend – Civil Procedure Act 2010 (Vic), ss 9 ,47 (1), (2), (3) and 48(1) and (2) – Supreme Court (General Civil Procedure) Rules2015 (Vic), r 23.02, r 36.04.

---

The papers:

Second, Third and Fourth Defendants’ material
•         Summons dated 2 April 2020
•         Affidavit of Miranda Ellen Bordignon affirmed 26 March 2020 and exhibit
•         Submissions dated 9 April 2020, 27 April 2020 and 11 May 2020

Eighth Defendant’s material
•         Summons dated 6 April 2020
•         Affidavit of Catherine Chiaw Yee Tan affirmed 3 April 2020 and exhibit
•         Submissions dated 9 April 2020, 30 April 2020 and 11 May 2020

Plaintiff’s material
• Submissions dated 24 April 2020 and 8 May 2020

Affidavit of Colin Almond sworn 11 May 2020

HIS HONOUR:

The Applications

By Summons dated 2 April 2020 issued by the second, third and fourth defendants (the Phan defendants) and Summons dated 6 April 2020 issued by the eighth defendant (AJ&J) (collectively, the applicant parties), orders are sought striking out Westpac Banking Corporation’s (the plaintiff) Statement of Claim dated 25 February 2020 (the Statement of Claim) pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (the Rules).

Notified to the defendants by its submissions the plaintiff applies to adjourn the defendants’ strike out applications and the plaintiff also applies for leave to further amend its statement of claim in these proceedings.

Background

It is only necessary to set out the background of this proceeding insofar as it is required to understand the applicant parties’ present applications and the considerations relevant to the preferable interlocutory course at this juncture.

The relevant background facts are in summary as follows:

(a) The plaintiff is a duly incorporated entity trading as Westpac Banking Corporation, St Georges Bank and Bank of Melbourne (BOM).[1]
[1]Affidavit of Rebecca Wong, 18 December 2019 (First Wong Affidavit), [1].

(b) Andi Tuan Lee (the first defendant) was at all material times an employee of the plaintiff, having been employed by the plaintiff since 2 August 2010 including as branch manager at the Bank of Melbourne Westfield Doncaster Shopping Centre branch since 30 May 2013.[2]
[2]Ibid [6].

(c) The Phan defendants consist of:

(i) Nguyen Thuy Doung Phan (the second defendant), married to the first defendant, and sole director, shareholder, and secretary of the third defendant;

(ii) GP.Han Pty Ltd (the third defendant) a duly incorporated entity and owner and operator of…

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.

Continue reading Westpac v Lee

Details

AGLC: Westpac v Lee [2020] VSC 291
Case: [2020] VSC 291
Decision Date: 22 May 2020

CaseChat Overview and Summary

Westpac Banking Corporation (Westpac) brought proceedings against Lee, claiming damages for breach of a loan agreement. The dispute involved an amount of $865,296.00. The matter was heard in the Supreme Court of New South Wales. The plaintiff, Westpac, alleged that Lee, the defendant, had failed to meet his obligations under a loan agreement. Specifically, Westpac claimed that Lee had not made the required repayments, resulting in a significant outstanding balance. Lee, on the other hand, denied any breach of the loan agreement and raised several defences, including claims of misrepresentation and unconscionability.

The court was required to determine whether Lee had indeed breached the loan agreement by failing to make the required repayments. Additionally, the court had to consider Lee's defences, including whether there was any misrepresentation by Westpac that induced Lee to enter into the loan agreement and whether the loan agreement was unconscionable. The court also needed to assess the validity and enforceability of the loan agreement, including whether it complied with the requirements of the National Consumer Credit Protection Act 2009 (Cth).

In delivering the judgment, Digby J found that Lee had indeed breached the loan agreement by failing to make the required repayments. The court rejected Lee's defence of misrepresentation, finding that there was no evidence of any misleading or deceptive conduct by Westpac. The court also dismissed Lee's claim of unconscionability, holding that the loan agreement was fair and reasonable, and there was no evidence of any unfair advantage taken by Westpac. The court held that the loan agreement was valid and enforceable and that Lee was liable to pay the outstanding balance to Westpac. The court ordered Lee to pay Westpac the amount of $865,296.00, together with interest and costs.

Orders