Lobb v Westpac New Zealand Limited
[2024] NZHC 16
•17 January 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-000499
[2024] NZHC 16
BETWEEN STUART JAMES LOBB
Plaintiff
AND
WESTPAC NEW ZEALAND LIMITED
Defendant
Hearing: 13 November 2023 Appearances:
R Latton for the Plaintiff
L Harrison and S J McLean for the Defendant
Judgment:
17 January 2024
JUDGMENT OF ASSOCIATE JUDGE GARDINER
This judgment was delivered by me on 17 January 2024 at 4.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date.......................................
Solicitors:
Grant & Co, Auckland Simpson Grierson, Auckland
R Latton, Auckland
LOBB v WESTPAC NEW ZEALAND LtD [2024] NZHC 16 [17 January 2024]
Introduction
[1] In February 2015, Stuart Lobb and his wife increased the limit on an existing loan with Westpac by $150,000. In April 2015, they sought to fix the interest on a portion of the loan. At that point, the Lobbs’ borrowing was split into a
$1.1 million term lending facility (the 92 Account) on a fixed interest rate, and a
$150,000 revolving credit facility (the 03 Account) on a floating interest rate. Mr Lobb and Westpac dispute the impact of these changes on the terms of borrowing between them.
[2] Mr Lobb says that the April 2015 variation did not disturb the existing 10-year interest-only period agreed in February 2015. Westpac, on the other hand, says that it was agreed that the $1.1 million facility had a three-year interest-only term.
[3] Mr Lobb’s claim arises out of the fact that when (on Westpac’s case) the loan changed to require principal and interest repayments in April 2018, Mr Lobb and his (by then estranged) wife defaulted on their payment obligations. Mr Lobb, at that point (and having failed to get his wife to agree to changes to the borrowing terms) asked Westpac to agree to extend the interest-only period and made a hardship application. Both applications were declined.
[4] In 2020, Westpac proceeded to a mortgagee sale of a secured property (owned by a trust associated with Mr Lobb and his wife). This process stopped when Mr Lobb arranged a refinance and redeemed the mortgage.
[5]In a statement of claim filed in March 2021, Mr Lobb claimed that:
(a)Westpac breached its contractual obligations to him by demanding repayment of the principal loan and claimed the interest-only period had ended, contrary to the terms agreed in February and April 2015; by refusing to re-fix the interest rate in March 2018; and by issuing notices under the Property Law Act 2007 and advertising the sale of the secured property.
(b)Westpac acted oppressively under the Credit Contracts and Consumer Finance Act 2003 in breaching the borrowing terms, or by refusing to vary those terms in 2018 (it being said that the loan terms signed were inconsistent with Mr Lobb’s understanding).
(c)The agreement that was signed in April 2015 should be rectified to be consistent with the intention of the parties, which was that the 10-year interest-only payment agreed in February 2015 continue to apply.
(d)The doctrine of non est factum applies.
(e)Westpac made false and misleading representations regarding the agreement that was signed in April 2015.
(f)Westpac was responsible for the publication of two articles on the OneRoof website that made statements that were allegedly defamatory of Mr Lobb in the context of the mortgagee sale.
[6] In July 2022, Westpac informed Mr Lobb that it had erroneously not applied a discount on the interest rate charged on the 92 Account that he was entitled to as a member of Chartered Accountants Australia and New Zealand (CAANZ). The error arose in April 2018 when the 92 Account moved from a fixed interest rate to a floating interest rate, and continued until the loan account was closed in August 2020. To correct the error, Westpac refunded $14,413.93 to Mr Lobb on 18 August 2022.
[7] In September 2022, Mr Lobb filed an amended statement of claim to include an allegation that Westpac had breached undertakings it had given to the Financial Markets Authority (FMA) relating to its identification of errors in discounting fees for some customers. This statement of claim includes an additional cause of action for breach of the Financial Markets Conduct Act 2013.
[8] Mr Lobb claims losses in excess of $1.2 million, being the additional interest and bank fees he has paid Westpac and a non-bank lender following the refinancing in 2020, and legal fees.
[9] Westpac denies all of the claims and also says that the Fair Trading Act 1986 claim is statute-barred.
[10] Mr Lobb applies for orders requiring further and better particulars in relation to two paragraphs of Westpac’s statement of defence; and particular discovery of five categories of documents.
[11] Westpac opposes the application on the grounds that it has provided detailed particulars in its statement of defence that are more than sufficient for Mr Lobb to understand and respond to its position; and the discovery sought is irrelevant to the claim, or has already been provided by Westpac and there is no basis to believe additional discoverable documents exist.
Legal principles
Further and better particulars
[12] Under r 5.21 of the High Court Rules 2016, a party may request another party to give such further particulars of its pleading that may be necessary “to give fair notice” of its cause of action, grounds of defence, or the particulars required by the rules.
[13] In Price Waterhouse v Fortex Group Ltd, the Court of Appeal said that the purpose of a pleading is to:1
… supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading[s].
[14] In terms of the importance of particulars, this Court stated in ResMed Ltd v Fisher & Paykel Healthcare Ltd:2
Particulars illuminate a pleading and ensure that the opposite party is fairly informed of the case to be met at trial. In that respect, particulars serve to isolate the issues in dispute, and assist in determining the scope of the evidence required to be called at trial.
1 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.
2 ResMed Ltd v Fisher & Paykel Healthcare Ltd [2017] NZHC 2954, (2017) 131 IPR 169 at [12]. See also Platt v Porirua City Council [2012] NZHC 2445 at [19].
[15] Whether a pleading is adequate depends on several factors, including the nature of the case, the scope of the pleadings, the issues in dispute and the stage of the proceeding.3 The ultimate question is: in the circumstances of the claim, is the statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?4
[16] In deciding whether to exercise its discretion to require a party to provide further particulars, the Court should keep in mind the objective of the High Court Rules, which is to secure the just, speedy, and inexpensive determination of proceedings.5
[17] A statement of defence must give particulars of time, place, amounts, names of persons, nature and dates of instruments, and other circumstances sufficient to inform the Court, the plaintiff, and any other parties of the defendant’s defence.6
Particular discovery
[18] Under r 8.19 of the High Court Rules, a Court may make an order for particular discovery after the proceeding has commenced, where:
…it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered…
[19] The starting point is that a document or class of documents will only be discoverable if relevant to the matters at issue before the Court. Only then can it be said that, in terms of the rule, they “should [have been] discovered”.7
[20] The Court usually follows a four-stage approach in considering applications under r 8.19.8 First, are the documents relevant to issues before the Court, and if so,
3 Body Corporate 355492 v Queenstown Lakes District Council [2020] NZHC 2590 at [29].
4 Price Waterhouse v Fortex Group Ltd CA179/98, 30 November 1998 at 19.
5 Dewaki v Kato [2021] NZHC 1869 at [21]; and High Court Rules 2016, r 1.2.
6 High Court Rules 2016, r 5.48(5).
7 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8(a)].
8 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [14]; and Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR8.19.03].
how important will they be? Secondly, are there grounds for belief that the documents exist? This will often be a matter of inference. Thirdly, would the time and cost of discovery be proportionate to its potential value? Fourthly, weighing and balancing these matters, and in the Court’s discretion, is an order appropriate?
[21] Relevance is to be assessed according to the pleadings.9 In determining relevance, it is the case of the party seeking discovery that must be assumed to be true, not the party from whom discovery is sought. Further, the party seeking particular discovery has the onus of establishing that the party from whom discovery is sought is in control of a document that should have been discovered under standard discovery.10
[22] The threshold embodied in “grounds for belief” is not high; all that is necessary is to show is that there is some credible evidence which, assessed objectively, indicates that the documents that are sought exist.11
[23] A party must make a reasonable search for documents within the scope of the discovery order.12 What amounts to a reasonable search depends on the circumstances, including:13
(a)the nature and complexity of the proceeding;
(b)the number of documents involved;
(c)the ease and cost of retrieving the document;
(d)the significance of any document likely to be found; and
(e)the need for discovery to be proportionate.
9 Robert v Foxton Equities Ltd [2014] NZHC 726, [2015] NZAR 1351 at [8(b)].
10 At [8(c)].
11 Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760, [2018] NZAR 600 at [12].
12 High Court Rules 2016, r 8.14(1).
13 Rule 8.14(2).
Further and better particulars
Sub-paragraphs 68(c)(ii) and (iv) of the statement of defence
[24] In his notice requiring further particulars dated 13 October 2022, Mr Lobb asked Westpac to:
(a)particularise the date on which Westpac first identified that the CAANZ discount was not applied correctly for customers eligible for the discount; and
(b)particularise the date on which Westpac first notified the FMA that the CAANZ discount was not applied correctly for customers eligible for that discount, and in respect of Mr Lobb.
[25] In a response dated 27 October 2022, Westpac said that the issue in relation to the CAANZ discount and Mr Lobb’s loan was identified between March and May 2022. It said that the date Westpac notified FMA of this issue would be addressed through discovery.
[26] Mr Lobb filed his interlocutory application for orders requiring further and better particulars of the statement of defence and further and better discovery on 16 December 2022. In this application, Mr Lobb sought orders requiring particulars or a more explicit pleading responding to these questions:
(a)When exactly was the error in relation to the CAANZ discount as it applied to Mr Lobb identified, and how was the error identified?
(b)When did Westpac notify the FMA of the error, and what further regulatory compliance actions were required of Westpac from the FMA?
[27] In a supplementary affidavit of documents affirmed on 21 December 2022, Olivia Ansari, Senior Legal Counsel for Westpac, deposed that she had requested from Westpac’s remediation team copies of all documents and communications related to:
(a)calculation of the refund paid to Mr Lobb in July 2022;
(b)identification of the issue with association packages (including the CAANZ package) and any documents relating to the timing of the identification issue; and
(c)communications between Westpac and the FMA in relation to ongoing remediation workstreams following the enforceable undertakings entered into in August 2019 and, in particular, any communications relating to the association packages remediation.
[28] Ms Ansari deposed that all documents located were reviewed for relevance and all relevant documents over which Westpac did not claim privilege or confidentiality were listed in Part 1 of Westpac’s list of documents. Westpac claimed confidentiality over certain documents relevant to Chartered Accountants’ discount packages and the 92 Account and indicated that Mr Lobb’s counsel could inspect them on the provision of suitable undertakings. That inspection had not taken place by the date of the hearing.
[29] In its notice of opposition, Westpac says that it has provided in its amended statement of defence the best approximation of the date range within which it became aware of the issue in relation to the CAANZ discount and Mr Lobb’s account (March to May 2022). It says pinpointing the precise date is neither possible nor necessary, noting that Mr Lobb’s likely only interest is to establish whether Westpac was aware of the issue prior to Mr Lobb repaying the 92 Account loan in August 2020. Westpac says it has discovered its updates to the FMA regarding the identification of issues with Westpac’s association package discounts and remediation steps.
[30]In an affidavit affirmed on 27 January 2023, Ms Ansari deposes:14
(a)Westpac has been aware since approximately February 2020 that some home loan package customers may not have received advertised interest rate discounts (a copy of the JUNO note for this issue has been discovered, and is annexed marked “V”). At this point further analysis was required to identify which packages and which customers were actually affected.
(b)Westpac is processing a number of remediation workstreams and has done so since entering into enforceable undertakings with the Financial Markets Authority and Commerce Commission in August 2019. These remediation projects are completed on the stated basis, with updates provided to the FMA. The remediation project for association packages (of which the NZICA / CAANZ package that was applicable to the plaintiff is one) was completed between March and May 2022. Westpac has provided discovery of communications with the FMA which refer to the association packages and/or the NZICA / CAANZ discount packages.
(c)Westpac is not in a position to identify the exact date within this period on which this analysis was completed, and Mr Lobb was identified as an affected customer, or the exact date on which it became aware that the NZICA / CAANZ package was one of the affected association packages. This analysis was part of a larger project, and Westpac has hundreds of discount packages that were analysed to identify affected customers. Mr Lobb was advised of the error in a remediation letter dated 19 July 2022.
(d)No explanation has been provided as to why Mr Lobb requires a more specific date within this period, and Westpac does not understand why this would be necessary in order for him to understand or reply to Westpac’s defence. It is expected that he may have an interest in knowing whether Westpac identified the error in respect of the 92 Loan prior to his full repayment of that loan in August 2020. The information that is available shows that it was not.
(emphasis added)
[31] At the hearing, Mr Latton clarified that what Mr Lobb wants to know is what information Westpac had from around February 2020 when it became aware that some home loan package customers had not received advertised package rates, through to the focus on affected association packages including the CAANZ package, and identification of Mr Lobb as an affected customer between March and May 2022.
14 Affidavit of Olivia Kate Ansari affirmed 27 January 2023, at [43].
[32] Mr Latton submits that the precise dates of Westpac’s knowledge are relevant and important to Mr Lobb’s case that Westpac began a mortgagee sales process in April 2020 based on erroneous figures due to the error. Mr Latton submits that the issue is whether Westpac proceeded with the mortgagee sale process knowing that there was a risk of errors in the rates applied to associate packages, including the CAANZ package and therefore Mr Lobb’s 92 Account loan.
[33] Mr Latton submits that the easiest way for Westpac to respond to this request would be to plead the dates on which it reported to the FMA on the broader issue identified in the February 2020 communication (the JUNO note annexed to Ms Ansari’s affidavit) and/or to provide discovery of all these communications.
[34] From Mr Latton’s submissions and Mr Lobb’s affidavit filed in support of his application it appears that Mr Lobb’s complaint has evolved to include an allegation that Westpac wrongly commenced the mortgagee sale process knowing that there was a risk that the 92 Account balance was wrong. It seems that Mr Lobb’s interest in Westpac’s emerging knowledge of the problem of discounted rates not being applied to qualifying customers relates to this concern.
[35] It must be acknowledged that even Mr Lobb’s amended statement of claim does not clearly put the legality of Westpac commencing the mortgagee sales process in these circumstances in issue. His amended statement of claim includes a new section headed “Westpac’s Undertakings” in which he sets out the background to Westpac’s 2019 undertakings to the FMA and the subsequent notification to him of the error and refund. His new cause of action for breach of ss 19 and 21 of the FMCA includes that Westpac made false and misleading representations on several matters, including the amount required to repay the loan to redeem the mortgage. This may be a reference to the loan balance being incorrect due to the CAANZ error – it is not entirely clear.
[36] This lack of clarity about the basis for Mr Lobb’s claim is problematic when it comes to considering Mr Lobb’s discovery application. As noted, relevance for the purposes of discovery is determined by the pleadings. Certainly, it seems from
Westpac’s response that, prior to the hearing, it had not appreciated why Mr Lobb was so interested in the precise timeline of its awareness of the discount package issue.
[37]Despite this general observation, I accept Mr Lobb’s case that paras 68(c)(ii),
(iii) and (iv) of Westpac’s statement of defence are unclear and should be further particularised.
[38] At para 68(c)(i) Westpac pleads that at the date of the undertakings (August 2019) it had not identified any issue with the CAANZ discount package or the 92 Account. That is clear. However, at para 68(c)(ii) Westpac pleads that the “CAANZ package is an association package that was not specifically covered by the undertaking but was identified as part of a review process carried out by Westpac following the undertaking”. It is unclear from this statement when the review process commenced and when the review identified the CAANZ package as being an affected package. I consider that Westpac must be able to be more explicit than it has been about this timeline.
[39] Furthermore, at para 68(c)(iii) Westpac pleads that “following identification of the issue with the association packages, Westpac further identified that when the 92 Account moved from a fixed to a floating interest rate in April 2018, the NZICA discount was not applied to that floating rate”. Again, this pleading is lacking in precision. It is unclear when “the issue with the association packages” was identified and when Westpac “further identified” that the 92 Account was affected. Paragraph 68(c)(v) clarifies that the error concerning Mr Lobb’s account was specifically identified between March and May 2022. However, it remains unclear when “the issue with the associated packages” was identified.
[40] At para 68(c)(iv), Westpac pleads that it notified the FMA of the issue with the association packages discount under the Financial Services Conduct Review programme. Westpac does not say when it notified the FMA. Again, I consider that it should.
[41] Accordingly, an order that Westpac provide a more explicit pleading follows at the end of this judgment.
[42] At the hearing Mr Latton also informally requested discovery of all Westpac’s communications with the FMA from when the broader loan package issue was identified in February 2020. For two main reasons I am not prepared to make a discovery order on those broad terms or even for a narrower set of communications concerning the CAANZ package.
[43] First, to require Westpac to discover all its communications with the FMA on the broader issue would be disproportionate, especially when the relevance of the communications is disputable because Mr Lobb has not clearly put the timeline of Westpac’s knowledge in issue in his amended statement of claim.
[44] Second, Ms Ansari has sworn an affidavit stating that Westpac has given discovery of all these communications in any event. The onus is on Mr Lobb to show is that there is some credible evidence which, assessed objectively, indicates that relevant documents exist that have not been discovered by Westpac. As at the hearing date, Mr Lobb’s solicitor/counsel had not yet inspected Westpac’s confidential communications with the FMA disclosed in its supplementary list. In these circumstances, and given my conclusion on the application for particulars, I am not persuaded that a particular discovery order is warranted.
Paragraph 73 of the statement of defence
[45]At para 73 of his amended statement of claim Mr Lobb pleads:
73. On or around 21 July 2022, the Plaintiff received a letter from the Defendant dated 19 July 2022, stating that the 92 account had missed out on some of the entitled benefits and the Defendant had made unauthorised overcharges to the 92 account, and that the Defendant would make a refund of $14,413.93 to the Plaintiff (“Unauthorised Overcharges”) (“Error Letter”).
[46]At para 73 of its statement of defence, Westpac pleads:
73. In response to paragraph 73, it admits it sent a letter to the plaintiff on or about 21 July 2022 advising him of the Error and that Westpac would refund him the sum of $14,413.93 as a result. It further says that the letter does not contain any acknowledgement of “unauthorised overcharges”. It otherwise denies paragraph 73.
[47] In his notice requiring further particulars Mr Lobb required Westpac to particularise how the refund of $14,413.93 was calculated by reference to the incorrect interest charged, by date and interest, and in respect of each amount how that was not as a result of the defendant applying unauthorised charges. Additionally, Mr Lobb sought discovery of documents showing how the refund was calculated.
[48] In its letter of response dated 27 October 2022, Westpac’s solicitors explained how the refund was calculated. It said that a detailed breakdown of the refund figure would be addressed through discovery.
[49] As noted above, Ms Ansari deposed in her subsequent affidavit that she requested Westpac’s remediation team to locate all documents and communications relating to the calculation of the refund paid to Mr Lobb in July 2022. Two documents have been discovered. One is an internal Westpac email from its remediation team dated 10 August 2022 with an explanation for the calculation of the $14,413.93 refund “in case [Mr Lobb] makes any further inquiries”. The other is a spreadsheet which allegedly shows the calculation of the refund, including a breakdown of the overpaid interest on a monthly basis.
[50] Mr Latton argues that the spreadsheet is not a calculation of the refund amount. He submits that it shows the monthly loan balances and interest rates but does not show how the overpayment was calculated. Nor, he says, does the email, which is merely an explanation of the methodology.
[51] I decline to order Westpac to provide further particulars on this point, or particular discovery. The correctness of Westpac’s calculation of the refund is not an issue in the proceeding. The closest Mr Lobb comes to putting the calculation at issue is at para 75 of the amended statement of clam where he asserts that he has not been able to verify whether the calculations are accurate or complete. But Mr Lobb has not pleaded as part of any of his causes of action that the refund calculation is wrong.
[52] It cannot be said that Mr Lobb needs further particulars from Westpac to understand the basis for its defence. Westpac’s defence is that it identified an error, calculated the refund payable and paid the amount to Mr Lobb. It has given a general
explanation of its methodology. Mr Lobb is effectively asking for Westpac’s evidence, which will be provided for trial.
[53] In terms of the application for discovery of documents showing the refund calculation, the relevance of any such documents is doubtful. Again, there is no pleaded allegation that the refund was calculated incorrectly.
[54] In any case, Ms Ansari has sworn an affidavit that all documents and communications related to the calculation of the refund have been discovered. Mr Lobb has not discharged the onus on him of showing, contrary to Ms Ansari’s affidavit, that there is evidence to suggest that additional documents do exist that Westpac has not discovered.
Further and better discovery
Categories 1 and 2
[55] Mr Lobb requests discovery of “all internal Westpac staff correspondence, whether through emails or through the staff intranet, about issues with what happens at the end of non-limit-reducing terms for Choices Everyday Loans, including all historical versions of the correspondence.”
[56] Relatedly, he seeks all documents produced by and/or published on Westpac’s JUNO system (Westpac’s integrated risk and compliance system) concerning this same issue.
[57] In support of this category, Mr Lobb has provided screenshots allegedly provided to him by a Westpac “whistle-blower”. It is said to show internal Westpac correspondence about issues with the expiry of interest‑only/non‑reducing periods for Westpac Choices Everyday Home Loan accounts.
[58] Ms Ansari explains the context for the screenshots in her 27 January 2023 affidavit at paras 49 to 54. Mr Lobb’s complaint in this proceeding is that at the end of the three-year interest-only period for his Choices Home Loan (the 92 Account), the loan reverted to principal and interest payments and the limit began reducing.
[59] Ms Ansari deposes that the issue described in the screenshots provided by Mr Lobb relate to a different loan product (a Choices Everyday Loan, which is a revolving credit facility, as opposed to the Choices Home Loan, which is a term loan facility). Furthermore, the screenshots deal with a different issue, which is that the interest-only periods were not being automatically reduced by Westpac according to the agreed contractual agreements with the customers, i.e. the opposite issue to Mr Lobb’s claim.
[60] The quality of the images is poor, but from what I can discern the communication does concern the issue Ms Ansari describes. The communication states:
… actively working to resolve a historic issue where customers on a Choices Everyday home loan with a non-limit reducing term, have not had their loan limits reduced as per their agreed contractual agreement.
We will be implementing a system fix where customers with an expired non- limit reducing term, on a Choices Everyday home loan, will have their limit start reducing on 30 August 2021.
[61] Therefore, whether the communication is concerned with a different product to the 92 Account or not, the communication is concerned with a different issue. In fact, it is concerned with the opposite to the issue that forms the basis for Mr Lobb’s claim against Westpac – limits not reducing when they should have done so according to the agreed terms.
[62] Therefore, I find that the screenshots do not provide a sound basis for concluding that Westpac has not discharged its discovery obligations, and that further relevant documents exist that have not been discovered.
Category 4
[63] I understand from Mr Latton that this category is resolved, as the documents sought were already in Westpac’s discovery, albeit he maintains they were difficult to identify.
Category 5
[64] Mr Lobb requests “repayment schedules relating to his loan accounts with Westpac for 2011 – 2018, showing the mathematical calculations behind interest and/or repayment deductions for his loan accounts.”
[65] Westpac maintains that it has provided all documents in its possession relating to Mr Lobb’s loan accounts for the relevant period. These comprise loan summary documents and bank statements.
[66] It is apparent from Mr Latton’s submissions that Mr Lobb requires the data that sits behind these loan summaries and bank statements. Mr Latton submits that Westpac’s systems must record data such as daily interest due on home loans and payments paid.
[67] Ms Ansari deposes that Westpac has complex systems which calculate interest and principal deductions for each customer on their home loans. Her evidence is that there is no simple way to produce the information sought by Mr Lobb.
[68] I am not persuaded to order discovery of this category, for two main reasons. First, based on Westpac’s evidence, the category does not presently exist, in the sense that there is no existing document or record of the kind Mr Lobb describes. He is essentially asking Westpac to create a document from the bank’s underlying data.
[69] Second, the information sought is only relevant if Mr Lobb challenges the accuracy of the information in the loan summaries and bank statements. That is not the basis for Mr Lobb’s claim. His claim concerns, primarily, the change to the interest-only period from 10 years to three years, and the impact that had on the repayments required of him and his former wife. A second claim concerns Westpac’s error concerning the discounted interest rate. Mr Lobb’s discovery request in relation to that claim has already been addressed.
[70] Beyond that, Mr Lobb alleges some specific errors at paras 48(a) to (c) of his amended statement of claim. However, these errors do not form part of his causes of action against Westpac, and Mr Lobb has not explained why the issues identified are
not answered by the information in the bank statements and loan summaries. It would be disproportionate to require Westpac to provide discovery (which would seem to involve it extracting and collating data into a new form of record) when the overall accuracy of the loan balances is not an issue in the proceeding.
Result
[71]I order Westpac to provide a more explicit statement of defence that pleads:
(a)At para 68(c)(ii), when its review process began and when the review identified the CAANZ package as being an affected package.
(b)At para 68(c)(iii), when “the issue with the association packages” was identified and when Westpac “further identified” that Mr Lobb’s 92 Account was affected.
(c)At para 68(c)(iv), when it notified the FMA of the issue with the association packages discount under the Financial Services Conduct Review programme.
[72] The remainder of Mr Lobb’s application for further and better particulars and discovery is dismissed.
[73] As the result has been mixed, I invite the parties to agree costs. If costs cannot be agreed, Westpac should file submissions of not more than four pages by 9 February 2024 and Mr Lobb should file any submissions in response of not more than four pages by 23 February 2024. I will decide costs on the papers.
Associate Judge Gardiner
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