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					                    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:   9602 1799
                                   Facsimile:   9642 5185
1    HER HONOUR:    Mr Iyer, you appear on your own behalf?

2    MR IYER:   Yes.

3    MR STRONG:    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    HER HONOUR:    Mr Iyer, is there any reason why I shouldn't give

9         Westpac the right to have counsel appear before me today?

10   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.       This is a

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.       Is there any matter that you

19        wish to raise as to that?

20   MR IYER:   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.       If that is permitted within the procedures I

23        have got no objection to that.

24   HER HONOUR:    Who appeared for Westpac at the earlier Directions

25        hearing.

26   MR IYER:   I forget the name of the other gentleman.

27   MR STRONG:    It was my instructing solicitor, Mr Ewer.

28   HER HONOUR:    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

     .VCH 19/03/07     CD               1                      DISCUSSION
     Iyer 07/0269
1         proceeding, thank you.

2    MR STRONG:    If Your Honour pleases.

3    HER HONOUR:    Yes, now Mr Iyer it is your case.     Do you wish to

4         start with your application?

5    MR IYER:   Yes, yes.      Am I allowed to read something from my

6         notes?I would like to read something.

7    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?    Perhaps

12        you can hand it up.       Is this a document that you have

13        shown to the solicitors for Westpac?

14   MR IYER:   I have given one set for them already and one set is

15        (indistinct).

16   HER HONOUR:    All right, well perhaps you can identify from the

17        file the documents that you rely on. Stay there and the

18        document file will be brought to you.       All right, now

19                 Asas I understand it there is a document headed

20        "Introduction to the case, the parties, their knowledge

21        and background."       Do you have that?

22   MR STRONG:    Yes I do.

23   HER HONOUR:    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:    Yes, we have that your Honour.

27   HER HONOUR:    So which of these documents do you want me to be

28        looking at, Mr Iyer, the introduction?

29   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

     .VCH 19/03/07    CD                 2                     DISCUSSION
     Iyer 07/0269
1         (indistinct) institution operating in Victoria, not

2         abiding by the requirements of the Fair Trading Act,

3         1999.

4    HER HONOUR:    Which section of the Fair Trading Act do you say

5         you claim comes under?

6    MR IYER:   Section 9 and section 8.   Section 9 for misleading,

7         false and deceptive conduct and section 8(C) and (D)D for

8         unconscionable conduct.    Section 9 for misleading

9         deceptive conduct and section 11, misleading conduct in

10        relation to sub-leases(indistinct)(2.39).

11                 This case is about the justification and not the

12        legitimacy(indistinct) of charging compound interest on

13        home loans, car loans and personal loans in Victoria.

14   HER HONOUR:    So do you have a home loan and car loan from

15        Westpac?

16   MR IYER:   I have a home loan that I rolled over to another bank

17        in March 2002 and I had a personal loan but I'm not

18        bringing that as part of this case.

19   HER HONOUR:    All right, so your claim is in relation to a home

20        loan.

21   MR IYER:   Only.

22   HER HONOUR:    And you have paid out that loan?

23   MR IYER:   I have paid Westpac but then I transferred to

24        National Australia Bank, yes.    This case is not about - I

25        am not here about to talk about the rate of interest,

26        advice and the fluctuations in the interest rates in the

27        market due to market economic conditions.     I am not here

28        to talk about the rights of the licensed lender, whether

29        they have a right to charge compound interest or simple

30        interest, I am not talking about those.      I am not here to

31        talk about the borrower's duty to pay interest at an

     .VCH 19/03/07    CD              3                      DISCUSSION
     Iyer 07/0269
1         agreed rate, subject to changes due to and only due to

2         market fluctuations.     What I mean is if the interest that

3         is being charged on me is only due to market fluctuation

4         I have got no questions about those, only in case there

5         is something hidden, that is not being told.       That is

6         what I am coming up to.

7                  This case is not about whether it is appropriate or

8         not that compound interest company (indistinct)charged by

9         the licensed lender is tax deductible or has interest

10        expense in productive(indistinct) loans.       I am not

11        bringing any tax related matter into this case.

12   HER HONOUR:    Well perhaps you might tell me what it is about.

13        I am not going to be interested, obviously, in things

14        that this case is not about.      So what is it about?

15   MR IYER:    It is, as I mentioned on the first page, the first

16        two paragraphs.     There arey are only two paragraphs that

17        I am here to speak about as the primary reason why I have

18        broughtgot this before you.       It is false, misleading.   In

19        other words all I am saying is what I have been - all the

20        duty     (indistinct)(2.42)to be disclosed, I should have

21        been told and they have not told until just I had

22        surprise information that it has been disclosed what

23        happened just last week, which never took place for all

24        this time when I have been requesting and begging around

25        to show me.      Where this, how are you charging compound

26        interest, simple interest?       Nobody ever bothered about my

27        problem, so I need to bring that and suddenly only I have

28        brought it in front of VCAT and that too only when I

29        insisted that I go for a (indistinct) hearing at the time

30        I get some kind of legal reference that has been provided

31        by the courtesy of their representation. - - -

     .VCH 19/03/07    CD               4                      DISCUSSION
     Iyer 07/0269
1    HER HONOUR:    So this case is about your home loan.   You have

2         documents in relation to the home loan that you entered

3         into with Westpac?

4    MR IYER:   Yes I have got the loan everywhere.

5    HER HONOUR:    Hand those up to me.   I will give you the file and

6         you can tell me which documents I should be looking at

7         Mr Iyer.    There is a document headed Bank of Melbourne

8         which was a division of Westpac.     It is , a loan offer

9         document and it is dated - - -

10   MR IYER:   At the bottom of that, on the left hand side the

11        date.

12   HER HONOUR:   7 October 1999. Do you have a copy of that

13        document?

14   MR STRONG:    Yes I do.

15   HER HONOUR:    This is the document which sets out the home loan

16        from Westpac in the sum of $148,400.

17   MR IYER:   That's right.   This document was, as we can see,

18        prepared on 7 October 1999. , Tthat happened to be a

19        Thursday in that year, that month and we got a call from

20        the Bank of Melbourne, Cranbourne branch, that the loan

21        is being approved and we need to come there to sign the

22        document.    We couldn't go on Friday and we hadve an

23        appointment on Monday which was 11 October.

24   HER HONOUR:    Yes, so you signed the document on 11 October, and

25        when you say "we" is it yourself and your wife?

26   MR IYER:   Yes, myself and my wife.

27   HER HONOUR:    Are you bringing this claim on her behalf as well.

28   MR IYER:   Sure yes.   So, we went there to Bank of Melbourne in

29        Cranbourne on the 11th, if I remember well it's about

30        11 o'clock in the morning and the manager there

31        congratulated that we are getting our home and our loan

     .VCH 19/03/07    CD              5                      DISCUSSION
     Iyer 07/0269
1         has been approved and we just have to sign the document.

2         They showed where I had to sign and I requested the

3         manager to tell me if it's a standard contract and he

4         said, "Every contract here is a standard contract" and I

5         trusted this because they have got nothing particularly

6         against me to prepare a separate document.

7    HER HONOUR:    I will just interrupt you there and just say this.

8         Mr Strong, I think it may be worthwhile for Mr Iyer just

9         to set out       his claim first.   He may have to give

10        evidence in the witness box as to these issues but I just

11        want to have an understanding because, although there has

12        been a lot of documents filed, I don't yet have a clear

13        understanding of what the case is about.        So, are you

14        happy if Mr Iyer sets out his claim and then he can go

15        into the witness box?

16   MR STRONG:    That might cause some repetition.     Perhaps another

17        course would be for him to take the oath and give his

18        evidence at the same time as he is presenting his case.

19   HER HONOUR:    Yes, I had expected that you might be able to tell

20        me in summary Mr Iyer, what the case was about.           If you

21        are going to go into all this detail then it is right

22        what Mr Strong says, we don't want to have to do it

23        twice.     Perhaps you can just summarise the amounts you

24        say you are owed by Westpac and once you've done that

25        I'll get you to go into the witness box and give evidence

26        about the circumstances of your claim.        So, what amounts

27        are you owed under this contract, and why?

28   MR IYER:     The amount that I have worked out that andI presented

29        to VCAT and to the respondent earlier, I worked out on an

30        average, on the compounding effect on an average that I

31        have been charged 51.314 per cent more than what I was

     .VCH 19/03/07    CD                6                      DISCUSSION
     Iyer 07/0269
1         supposed to pay.      Then I got the different counsel

2         presentation saying that that was an

3         average(indistinct)(2.47) an average and they wanted to

4         work out on daily basis, daily compounding basis

5         whatever, applying .      Applyingthe logic that I have

6         presented, and I did the calculation again and when I did

7         the calculation it comes to - the respondent has come up

8         saying that I have paid only $1,500 more than what I was

9         supposed to pay.      Unfortunately in spite of this case

10        coming in front of you that calculation is still wrong.

11        What I have paid more is not $1,500.      What, what I have

12        paid more is $1,001.89.

13   HER HONOUR:   $1,001.89.

14   MR IYER:   That is what I have paid more, not $1,500.

15   HER HONOUR:   So the difference between what you should have

16        been charged and what you have been charged is $1,001.89.

17   MR IYER:   $1,001.89 is what I have charged more but they are

18        coming to saying that $1,500 I have been charged more

19        only after I came to VCAT.

20   HER HONOUR:   I want to know as of today how much you say you

21        have been overcharged on this loan contract.

22   MR IYER:   $1,001.89.

23   HER HONOUR:   So is that your claim?

24   MR IYER:   That is my actual claim yes, that's right, that's

25        what I have paid more from my pocket.

26   HER HONOUR:   So this is a claim for $1,001.89, is that right?

27   MR IYER:   That's right.

28   HER HONOUR:   And that's all?, and that is all?

29   MR IYER:   Plus the cost of coming to you and plus the time and

30        everything that I have incurred, that's exemplary damage

31        I was claiming there.      I'm explaining there.

     .VCH 19/03/07   CD                7                     DISCUSSION
     Iyer 07/0269
1    HER HONOUR:   Well you don't get exemplary damages from

2         preparing a case.   You have prepared this case, you

3         haven't had solicitors act for you?

4    MR IYER:   No.

5    HER HONOUR:   So you don't have any out of pocket expenses.

6    MR IYER:   Right.

7    HER HONOUR: So the amount you are saying that you have been

8         overcharged on this loan is $1,001.89?

9    MR IYER:   Yes, I don't want to take advantage of the respondent

10        saying I have paid $1,500.     No I have paid $1,001.89

11        more.

12   HER HONOUR:   All right, get in the witness box please.

13   <HARIHAN IYER, sworn and examined:

14   HER HONOUR:   Your full name, address and occupation?---My full

15        name is Hariharan Iyer and the address is 16 Cuthbert

16        Place, Burnside, Victoria 3023 and my occupation - I'm an

17        accountant.

18   I have already asked you some questions and you have told me

19        that the claim in this matter is based on the loan

20        document which is dated 7 October 1999 which I have but

21        which was signed by yourself and your wife on

22        11 October 1999.    So perhaps you can now tell me under

23        oath what is claimed under this document and how you have

24        calculated that claim?---The loan document says that the

25        amount of credit is $148,400 annual percentage variable

26        housing rate.

27   Sorry, where should I be looking?---In the front - - -

28   Yes, amount of credit $148,400?---And the next line annual

29        percentage rate, variable housing rate which is currently

30        6.55 per cent per annum will apply.

31   Yes?---Your Honour in all my knowledge and experience, my

     .VCH 19/03/07    CD             8                         IYER XN
     Iyer 07/0269
1         understanding and education 6.55 per cent per annum to me

2         straight away rings that bell that it is an annual

3         interest rate    (indistinct)(2.52) annual interest

4         ratewhich I studied in mathematics as simple interest.

5    Why would you think that?---Because my teachers have taught me

6         if there is an interest per annum, "pa" stands for per

7         annum and that's simple interest, that means interest is

8         always calculated on the principle.    That's what they

9         taught me.

10   Yes?---Whenever I have asked for loan I always try to shop

11        around the interest rate being at least .25 per cent

12        better than another bank that is offering the same loan

13        for me and I have been always taught thoughtthat interest

14        percentage per annum which certainly rang the bell to me

15        is certainly billed to me only only as simple interest.

16        Unsuspectingly I have gone, I have signed the contract, I

17        have commenced repayment, I have asked my question to the

18        manager because checking the signature, whether it's a

19        standard contract, which he agreed it's a standard

20        contract.    I didn't have anything to suspect, a reputed

21        licensed institution to be saying something to me and

22        doing something in their calculation.    I trusted

23        thateverything is right, I have paid my home loans on

24        regular repayments without any default.     I have been a

25        very honest person paying the money on time and I find

26        that the amount that they have calculated is not really

27        working out the right way.     In September 2006 just about

28        five or six months back I startedsat down to find out

29        whether all the interest they have charged they are

30        entitled or not.   I worked out a hypothesis, because in

31        mathematics always my teachers have taught me saying that

     .VCH 19/03/07    CD             9                          IYER XN
     Iyer 07/0269
1         we start with an hypothesis of unknown item as "x" or

2         unknown item as "100."     So I started my calculation as

3         $100,000 as a home loan that somebody is borrowing.

4    I do not want to deal with hypothesis. I want to deal with this

5         actual contract I have in front of me.      What do you say

6         you thought was meant by the words "Standard

7         contract"?---It meant to me that everybody gets a similar

8         type of contract except that they insert only the actual

9         amount of dollars that they're borrowing, plus the

10        interest rate and the term.      That is what I thought is

11        being inserted when it's a standard contract.

12   So why do you say that was wrong?     What was incorrect about

13        calling the contract a standard contract in this

14        case?---There is nothing wrong to call that contract a

15        standard contract except that the standard contract

16        doesn't tell exactly that 6.55 per cent per annum is

17        compounding monthly.     They have failed to mention, failed

18        to alert me, that this is a compound monthly concept they

19        are following.   That has not been disclosed to me.

20   Why do you say that should have been disclosed to

21        you?---Because if they had told me it is compounding

22        monthly I would have rejected the loan straight away, I

23        would have waited for a few more years until I gathered

24        some more money as a deposit, I'll go for 50 per cent of

25        capital for buying the house.      I have lived here without

26        having my own house and own car for many years.

27   So you say the difference between what you thought you were

28        going to be charged for interest, and what you were

29        actually charged is $1,001.89?---Luckily, because I

30        stayed with them only for two years.

31   So you say that difference of $1,001,89 would have alerted - if

     .VCH 19/03/07   CD               10                        IYER XN
     Iyer 07/0269
1         you had known about that you wouldn't have entered into

2         the loan.     Is that what you are saying?---If I knew that

3         - over a period of 25 years loan it is not $1,001.       Over

4         a period of 25 years it is 47 per cent more than what I'm

5         supposed to pay.

6    You understand all I can deal with today is your contract and

7         what you have lost?---Right.

8    But you.   You say you thought this was a simple interest rate

9         but, in fact, it is compound interest rate and, as a

10        result of that, you have lost $1,001.89?---Yes.

11   .   Are there any other matters about entering into this

12        contract that you want to explain to me?---The way the

13        contract, the loan approval, the way the contract has

14        been pressured to sign.    I have been under pressure to

15        sign this contract because I didn't apply for the loan

16        directly to the Bank of Melbourne.     I had to apply

17        through the builder and the builder had pressure on me to

18        tell them whether we are going ahead or not.     At that

19        point I had been told my loan is approved, so once my

20        loan is approved all that I have to ensure is I'm signing

21        the normal regular contract.     I signed it and I just

22        wanted to keep things going.     That's all I did.

23   You understand this is not a claim against the builder, this is

24        a claim against Westpac?---Sure..

25   You are not saying you were pressured to sign by

26        Westpac?---Yes, that's what I'm saying.

27   You were?---Yes.

28   So who was it at Westpac who pressured you to sign?---Westpac

29        didn't give me the time, Westpac didn't tell me "we don't

30        know whether this contract is clear for you or not, we

31        suggest you take it to solicitor and read that."     I

     .VCH 19/03/07    CD              11                          IYER XN
     Iyer 07/0269
1         thought probably if there is something that is customary

2         of trade practices in Melbourne, I would have expected

3         the bank to alert me to go to a solicitor and get an

4         opinion before I sign.

5    So what is it you think the bank should have alerted you

6         about?---About all the terms and conditions in this

7         because on page 10 - the condition on page 10 is the one

8         that in the summary contract, it's 10 of the 24 pages.

9         It is the document entitled "You and your loan."

10   I don't know whether I have got that.     The document I've got,

11        the loan offer finishes at page 8.     Just check that that

12        is what you meant.    If that is the document then I will

13        take it from there.    I am looking at page 10 of the terms

14        and conditions.   Whereabouts?---Before we go into that

15        can I draw your attention to the front page of this loan

16        agreement?

17   Yes?---From the top, the third line says, "All the terms and

18        conditions of the lenders offer to you are set out in

19        this letter and the accompanying booklet of standard

20        terms and conditions, version B and E.008 of the booklet"

21        - - -

22   I have lost you, which page was that?---The first page, I am

23        reading from this portion.

24   This is the loan offer document.     I have got that.   So this

25        loan offer is to be read with the booklet "You and your

26        loans"?---And what it says, the next line there is very

27        important for me to bring to your attention.       "If there

28        is any inconsistency the letter prevails."

29   Yes?---Now when I read the first eight pages that you have got

30        of the loan offer nowhere have I come across either the

31        word "compounding monthly" or the words "Interest will be

     .VCH 19/03/07   CD              12                          IYER XN
     Iyer 07/0269
1         charged on interest."      I have not come across in the

2         first eight pages anywhere.        When I read in the next

3         document, "You and your loan" on page 10 of 24 pages,

4         p.10 has got it then has got point 9, condition F "How

5         the lender applies your repayments" and it is set out if

6         you have the subsidised loan wethey will apply all

7         payments made by you in the following order "to the

8         extent the payment covers each amount, first any unpaid

9         government(indistinct) charges"        No disputes about that.

10        Second "Any unpaid enforcement expenses" no questions

11        about that.      Third, "Any unpaid interest which has been

12        debited to the loan account on or before the date of

13        payment."    Fourth, "Any other unpaid fees andor charges"

14        no questions about that.      Fifth, "the principle of the

15        loan."

16                 I am having least English knowledge, my English

17        knowledge is limited to the level I can communicate,

18        that's the level to which I have got communication level.

19        By reading this I have got no idea, and even I have tried

20        this with another 100 of my friends to see if they mean

21        anything else compound interest, and I got an answer no

22        from all the 100 people.      There is no clue for them that

23        this is compound interest.        I have asked them, next

24        question, by reading this if they get an idea that if

25        they continue to repay the loan to Westpac for over 25

26        years do they get an idea they will end up paying 47 per

27        cent more than what they should pay?        Everybody said they

28        have got no idea that is the volume of which they are

29        going to be paying extravagant amount over a period of

30        time.    Luckily I have stayed with Westpac only for two

31        years.     My, my friends have stayed with many other banks

     .VCH 19/03/07    CD               13                         IYER XN
     Iyer 07/0269
1         for many years and I am not here to talk about that part.

2         I am talking only about my loan document and when I see

3         this I find I have been duped.

4    Are you saying that you didn't understand that the monthly

5         payments you would be paying on your loan were as high as

6         they were?---I knew the monthly.

7    You knew how much you would be paying?---I knew because - - -

8    How much was it you were going to be paying on the

9         mortgage?---I had have been told that I will be paying

10        about 800 and odd dollars, $800(?) that's what I've been

11        told and whenever I found people going for a loan all

12        they check are only two things.     One, everybody wants to

13        know whether the amount of repayment that is being told

14        by the bank is within their capability to pay that.

15        Second they would like to see the interest rate that is

16        being quoted by the bank is marginally better than

17        another bank.    That is how, at least the people I deal

18        with, they have chosen their lenders.

19   Is there anything else that you want to draw my attention to in

20        these documents?---The front page of this document says

21        "If there is any inconsistency the letter prevails."

22        Bank of Melbourne has committed me, by this sentence,

23        that if I find this is not matching with what they have

24        quoted there as per annum, which to me means simple

25        interest, they are saying to me if there is a discrepancy

26        between the two, they want me to take up the letter of

27        offer as the one that prevails over "You and your loan."

28        On that basis I have requested Westpac to work out

29        (indistinct)(3.04.20) simple interest and pay me the

30        difference.     I have been dealt with in a very harsh,

31        unruly manner that forced me to try pay everywhere and

     .VCH 19/03/07   CD               14                       IYER XN
     Iyer 07/0269
1         then finally land up in front of you.    That is all I have

2         got to say.

3    HER HONOUR:    Thank you, stay in the witness box.   Mr Strong

4         will ask you some questions.

5    <CROSS-EXAMINED BY MR STRONG:

6    What are you academic qualifications?---My academic

7         qualifications?    Is this a relevant question I need to

8         answer, Your Honour?

9    HER HONOUR:    Well you have told me you are an accountant.   Is

10        there some qualifications you have to be an

11        accountant?---At the moment I'm a CPA.

12   That is not an academic qualification?---Academic qualification

13        - I have got a post graduation in commerce, post

14        graduation in education.    I have got a post graduation in

15        personnel personal management.

16   MR STRONG:    So you are a certified practising accountant?---I'm

17        a certified practising accountant, currently.

18   What was your employment position at the time you took out the

19        loan in 1999?---I was working for an accountant.

20   In an accounting firm?---Yes.

21   What is your employment position now?---Is this relevant at all

22        for me to answer your Honour?

23   HER HONOUR:    Mr Strong?

24   MR STRONG:    I want to establish the groundwork of this because

25        Mr Iyer has put forward to us a number of spreadsheets

26        and other forms of calculation.

27   HER HONOUR:    He doesn't look as if he is relying upon them as

28        at now.    All I have heard about is an amount of $1,000

29        which I presume is the difference - which he told me is

30        the difference between the calculation on his loan, if it

31        was calculated in accordance with simple interest than

     .VCH 19/03/07    CD             15                         IYER XN
     Iyer 07/0269
1         calculated in accordance with what he describes as

2         compound interest.

3    MR STRONG:    In order to elucidate elicithow you work that out

4         it will be necessary to go to that document that he

5         hasn't give us yet but he will, to show the calculations,

6         to show what my case will be - to put it very shortly

7         what he is doing is not what he says he is doing at all,

8         it is a different sort of calculation.     I don't press the

9         question about his position now but he has put forward

10        some mathematical calculations.

11   HER HONOUR:     I won't allow the question about his present

12        employment.      He tells me he is a CPA and at the time of

13        the loan was working for an accountant.     He tells me he

14        has academic qualifications in commerce, education and

15        personnel personal management.

16   MR STRONG:    You had some negotiations did you with a builder to

17        buy a block of land back in '99, is that what you

18        said?---That was not really relating to my claim with

19        Westpac.     I was only mentioning the circumstances.     In

20        other words I was trying to mention that I didn't go to

21        Westpac on my own, but through the builder.

22   I understand that but the property you wanted to purchase, that

23        you wanted the bank to provide a loan for, was the

24        property being sold to you by a builder, was it?---Yes.

25   The idea was you would build a house on that land, is that

26        right?---Yes.

27   Did the builder introduce you to Westpac?---Yes.

28   Did he introduce you to a man called Tom Smith?---He didn't

29        introduce, he took all my application, everything has

30        been processed by my builder, I never went to the bank at

31        all.     The very first time I have ever gone to the bank

     .VCH 19/03/07    CD               16                      IYER XXN
     Iyer 07/0269
1         was when I got the call on 7 October from Tom - I forgot

2         the surname.

3    Tom Smith?---Yes, we had a call and that's the first time we

4         met Tom, only on 11 October.     Prior to that I have never

5         - in fact on 11 October I had to search for the bank.

6    You actually met someone called Anne Kermin(?) that morning,

7         did you not?---No.

8    No?---No, I never met anybody from the bank at all.

9    On 11 October?---Only on the 11th I must have met Anne for

10        signing the document, yes.

11   You said in your evidence that you sat down and she showed you

12        the documents and you saw where you were to sign them and

13        you said you asked if they were standard documents and

14        you were told that they were.     You said that you trusted

15        Westpac, that they would have no reason to put anything

16        special in the documents against you, is that what you

17        say?---Yes.

18   How long after you signed the documents did you first draw down

19        money on your loan?---I think on the 22nd or 12th

20        of October.     I think it is the first draw down that has

21        been done, not having that in front of me, I don't want

22        to move from here, but you have got the document.

23   If I suggest to you it was 22 October?---Yes.

24   That would be right wouldn't it?---22nd of October would be

25        right.

26   Yes, so there was some 11 days after you signed the documents

27        before you actually drew down any money on this loan, is

28        that right?---Yes.

29   Now, when you finished signing the documents you took the copy

30        of the letter that you gave Her Honour before dated the

31        7th and a copy of this booklet, the "You and your loan"

     .VCH 19/03/07   CD               17                      IYER XXN
     Iyer 07/0269
1         document, away with you on the 11th, did you not?---Yes.

2    You did.   I take it from the evidence that what you say is you

3         didn't read this document on the day you signed the

4         loan?---I never said I didn't read the document ever.        I

5         said that on the day when I signed in the branch I had

6         only 15 minutes so I didn't read it then.

7    That is what I put to you, you didn't read it then.

8    HER HONOUR:     In case there is later a transcript - when you say

9         "this" document.

10   MR STRONG:    I beg your pardon.    I am referring to "You and your

11        loan" brochure.

12   HER HONOUR:     "You and your loan brochure."   Yes, thank you.

13   MR STRONG:    Did you read it in the subsequent 11 days?---I have

14        read for rest of my time until September 2006. , until

15        Till that time I could never understand that any of those

16        terms you have got means compounding monthly.

17   When did you first read the "You and your Loan" document?---On

18        the same day., I have been an academic.      Every time when

19        I deal with a situation as an academic, as a teacher, we

20        tend to read immediately what we have got to deal with.

21   All right, so you didn't read the document at the bank but you

22        read it later that day?---Later that day I read, before

23        even applying for the first draw-down

24        (indistinct)(3.11.30) I read the document.

25   Thank you.    Now, could you open the document at page 9

26        please?---I didn't register your name?

27   My name is Strong?---Strong.

28   Now go to page 9 of the document "You and your Loan"?---Yes I

29        am on page 9.

30   Can you see under heading 7 the words "Interest on your

31        loan"?---Correct.

     .VCH 19/03/07    CD                18                      IYER XXN
     Iyer 07/0269
1    Then "Calculation of interest."?---Yes.

2    I take it you read this back on 11 October 1999?---Yes.

3    Yes and you can see what it says there, can't you?---I never

4         denied that I can read,.    I can definitely read, I can

5         definitely understand what it says in English but what I

6         mention is that doesn't make me understand in any way it

7         is interest compounding monthly.     That is my claim.

8    Yes, well never mind the interest compounding monthly.    Can we

9         just agree on what this does say?---It says "We will

10        charge interest at the end of each day by multiplying the

11        total of outstanding principle and any unpaid interest

12        debited to the loan account by an annual percentage rate

13        and dividing the result by 365."

14   Yes?---It doesn't - - -

15   You have done a number of spreadsheets, have you not, in which

16        you have performed calculations exactly like that?---I

17        did in 2006, September.    Not at the time when I took the

18        loan.

19   Just attend to my questions please.   That makes it very clear,

20        does it not, that the amount on which interest can be

21        charged can include an amount of unpaid

22        interest?---Outstanding principle and any unpaid interest

23        debited to the loan.   So it means to me that unpaid

24        interest well be debited to the loan which doesn't mean

25        it's compounding.

26   Never mind the word "compounding", we can come to that later.

27        I just want you to attend to the question I have asked

28        you.    It is very clear, is it not, from these words that

29        the amount on which interest would be charged at any day

30        could include unpaid interest that has been debited to

31        the loan account?---To me it doesn't.

     .VCH 19/03/07   CD              19                        IYER XXN
     Iyer 07/0269
1    Mr Iyer, isn't it there in plain English in front of

2         you?---Sorry?

3    Isn't thatit there in plain English in front of you?---It is

4         not.

5    That the amount on which interest is charged could include

6         unpaid interest which has been debited to the

7         account?---That's exactly what I'm saying.     It is not

8         clear to me that interest is getting calculated on

9         interest.     I don't understand that part of it.

10   Now, when you came to do your calculations in 2006 you did

11        understand that, didn't you?---In 2006 I understood yes.

12   So you are telling Her Honour that you didn't understand this

13        in 1999?---No.

14   B but you do understand it now?---In 2006 yes.

15   HER HONOUR:     I don't want to interrupt too much but I want to

16        be sure.

17   When it says any unpaid interest debited to the loan account am

18        I right in thinking that the $1,000 odd you say you have

19        been overcharged represents times when the monthly

20        payment was paid a little late and so interest was

21        charged on the interest that was already overdue?---No.

22   Is that right?---No, that $1,001 is a hidden compounding

23        interest I calculated.      I have never paid amount later,

24        except on two occasions that they have cited, which

25        amounted to $27 and I am not disputing that part of it.

26   Perhaps I will leave that then because that Thatis what I

27        thought the situation was but we will come back to that

28        after Mr Strong has finished asking you questions?---One

29        submission.      I never defaulted in repayment so there was

30        no reason I should end up paying compound interest.

31   MR STRONG:    Am I right in saying you have said to Her Honour

     .VCH 19/03/07    CD               20                      IYER XXN
     Iyer 07/0269
1         that you are not complaining about any occasion on which

2         the bank has actually charged interest on interest?---I'm

3         saying if I have defaulted the payment I think the bank

4         has got a right to charge interest on interest because

5         when any person who is a borrower defaults in their

6         payment, I think the lender has got a legitimate right to

7         take interest on that unpaid amount.

8    Yes?---Here I am, I never defaulted on anything.

9    You talked about being under certain pressure at the time you

10        signed the documents and you said the pressure was from

11        the builder who wanted to know whether your loan had been

12        approved, is that right?---The pressure was first of all

13        the builder wanted to know that my loan is taken out, but

14        that was not the one that was giving pressure for me to

15        sign the document.   It is only Anne, when we went there

16        she had only 15 minutes to sign the document.   That was

17        the pressure I refer to.

18   Have a look at the loan offer at the , on the page on which you

19        signed it, which is page 7?---Yes.

20   Now you see the words, "Things you must know."?---Yes.

21   Did you read that at the time you signed this document?---I

22        mentioned this, I hadve not read before signing.

23   You didn't read any of it?---I had not been pointed out to this

24        that I have to know this.    Currently as an accountant I

25        know - - -

26   I am just asking you about the words, the dot points under the

27        heading, "Things you must know."   Now, is it your

28        evidence that you didn't read that before you signed the

29        document?---I don't have evidence that I didn't read.

30   No, are you saying you didn't read that before you

31        signed?---Before signing I didn't read.

     .VCH 19/03/07   CD               21                       IYER XXN
     Iyer 07/0269
1    Yes but you did read it later that day?---Yes.

2    So you knew, didn't you, that if you were unhappy with any of

3         these conditions you could have gone back to the bank and

4         cancelled the loan?---Sure, yes.

5    Having read the documents you went ahead and authorised the

6         first draw down?---I was very happy with Westpac, I'm

7         making my dream come true to have a home.

8    You say you have got your bank statements there?---Yes.

9    Now you received those bank statements regularly?---I don't

10        know why, I got the second set photocopied and sent out

11        to me when I already had original in my file intact.

12   Never mind about that.     You did get them regularly at the time

13        during the period of your loan(3.19.10) and no doubt you

14        cast your eyes over them from time to time?---I have.

15   You saw the fact that the bank was charging interest every

16        month?---I have seen the interest debited every month.

17   You saw, didn't you, that the bank was charging interest and

18        adding that to the loan balance on the 22nd, or nearest

19        day, every month, is that not right?---Mr Strong, that's

20        what I'm pointing here.      I can only see a bank statement

21        as whether my repayments have gone through correctly,

22        whether you people are charging interest, that's all I

23        see.   I don't see - - -

24   Well have a look at your bank statement.     I hand up a set to

25        Your Honour.      I want you to look at the bank statements

26        Mr Iyer.     Now, just turn the pages as I ask you the

27        questions.      You will see on the second page of the

28        statements there is the recording of the initial draw

29        down of your loan of $51,225.77?---Yes.

30   Then if you turn over two more pages you get to the details of

31        the next month's transactions?---Yes.

     .VCH 19/03/07   CD                22                      IYER XXN
     Iyer 07/0269
1    There you see that the bank debited your account with interest

2          of $284.95?---Yes.

3    You paid $285.13 on that day?---Yes.

4    Now, if you go through, and I would like you to turn over to

5          about the period starting in May 2000, if you could find

6          those pages.   You can check by the dates. Tell me when

7          you have found the statement for the period 8 May to

8          8 June 2000?---Yes, that's the statement number 8 there.

9    You have got that.   Now, at this stage you were paying

10         fortnightly, weren't you?---Looks like that.

11   Yes, and it happened, didn't it, that from time to time your

12         payments didn't coincide with the date at which interest

13         was paid?---I never check on what date the bank is

14         charging interest.   I only know that my repayments are

15         going because I trusted the bank to be doing the

16         calculation of interest appropriately, I thought they

17         would plan everything on the right time.

18   I am asking you though when you looked at your statements you

19         would have seen, would you not, that the dates of your

20         payments were not necessarily, or frequently were not,

21         the exact date of interest charged?---It doesn't match.

22         Yes it doesn't match.

23   Yes, that's right, and when that happened the interest was

24         added to the balance, wasn't it.   You can see that on

25         statement number 8?---I never did this addition and

26         subtraction to see what is added and what is subtracted

27         in the balance.

28   You didn't?---No.

29   No.

30   HER HONOUR:     Are you looking at that 19 May entry of 29 cents?

31   MR STRONG:    No that's FID, the next one, 22 May, "interest

     .VCH 19/03/07   CD              23                        IYER XXN
     Iyer 07/0269
1         $930.13."

2    HER HONOUR:     I see that as being a different date than the

3         deposit of $482.31.      Is that what you are referring to?

4    MR STRONG:    Yes, and what I am putting to him is that it is

5         apparent from this that the $930.13 has been added to the

6         balance on that day.

7    HER HONOUR:     I see yes.

8    MR STRONG:    Now, it is the case, isn't it, that whether you

9         looked at it or not, every month the bank statements

10        showed you that when interest was charged to the account

11        unless there was a payment on the same day the amount of

12        the interest was added to the balance?---When I

13        got et - - -

14   No, answer my questions.      Whether you looked at it or not, you

15        agree with me that is what the bank statements said?---I

16        didn't know at that time.

17   I did not ask you that.      Just listen to the question.   You

18        agree with me that whether you knew it at the time or

19        not, that is what they in fact said.      That is what the

20        bank statement was telling you?---Now I understand.

21   Now you know it, you say you didn't know it then?---Yes.

22   Now, could I ask you to produce for Her Honour the revised

23        calculation in which you came up with $1,001.89?---I had

24        to give you a copy.

25   HER HONOUR:     Is there only one copy.

26   MR STRONG:    I think he has got more.

27   MR IYER:   They told me that I have paid $1,500 more but when I

28        did the calculation - - -

29   HER HONOUR:     Is that the only copy of that or are there more.

30        Go to the Bbar table and obtain the other copies?---This

31        is the total interest - - -

     .VCH 19/03/07    CD               24                        IYER XXN
     Iyer 07/0269
1    .You will have a chance to explain the documents. All I want to

2         do is have them distributed at the moment.

3    WITNESS:   Mr Strong, do you want me to explain what I did

4         there?

5    MR STRONG:    Yes, Mr Iyer.    Please explain what you have

6         done?---MR STRONG:       Please explain what you have done

7         here?Okay, I have printed with insufficient space on the

8         printer, that's why all those hash coming out without

9         number thing, but the relevant numbers are seen in column

10        C, column D and column E.       Column C, D and E are exactly

11        a replica of what is there in the bank statement, 29

12        statements.      I have just copied exactly whatever you

13        have, I have not verified the bank's calculation there.

14        Next column, column F I have just taken only the interest

15        that is in column C.      For convenience I have added all of

16        them (indistinct) (3.26) and have drawn number 7 in

17        column F for $20,235.80 as the total interest the bank

18        had debited in my account.         I have gone to column G to

19        include the interest fluctuation, the interest

20        fluctuation that has been - the market fluctuation advice

21        now and then by the bank. Again I am sorry a couple of

22        the dates are not very clear there but the rest of the

23        dates are clear and the percentage that has been advised

24        is clear.    In column A I have calculated the outstanding

25        money that has been lent me.         In other words the analysis

26        here I have done is actual cash that has been lent by

27        Westpac to me.     Out of the cash that is lent to me I have

28        refunded on different dates, you can see in column B I

29        have repaid certain amount of money.         I consider my money

30        brings the same 100 cents per dollar as Westpac money

31        would bring (indistinct)(3.27) so I was offsetting the

     .VCH 19/03/07    CD                25                         IYER XXN
     Iyer 07/0269
1         money that has been lent to me with the money that I

2         repaid to Westpac.    On that basis I have derived the

3         outstanding balance at different dates (indistinct)

4         there.     I have calculated the number of days from the day

5         on which I have made the repayment, from the date on

6         which the bank has lent to me, to forthe date on which I

7         made repayment I have calculated a number of days because

8         the bank calculates interest on daily balances.     So I

9         calculated the number of days by a formula and in column

10        KA I have calculated the interest.    You can see the first

11        interest is $284.97 is what I have arrived at with what

12        Westpac has calculated as $284.96 because the .     The

13        characteristic of simple and compound interest is -

14        simple interest and compound interest, in andthe very

15        first one they both bring the same result.    It's only

16        from the second month one onwards thate interest will be

17        less if it is simple interest.    That's why I've gone

18        ahead and projected for the entire period on the same

19        concept and the total that you see on column K, row

20        number 7, column K, shows I should have paid $19,233.91.

21        That's what I should have paid but what the bank had

22        debited is $20,235.80.    It is - with regret I have to say

23        that in spite of me bringing this to VCATVCAT, when the

24        bank was has sent the discrepancy I don't know why they

25        have shown that I have paid $1,500 when I have not paid.

26        I am saying I have paid $1,001.    So in spite of this case

27        coming to the court Westpac has shown negligence in terms

28        of doing the calculation and bringing it to tell the

29        customer what they have done.    Here I am, I don't want to

30        take your money one cent extra.    That's why I'm saying I

31        will take only $1,001.89.

     .VCH 19/03/07    CD              26                      IYER XXN
     Iyer 07/0269
1    Now, could you just clarify this for me?---Yes.

2    The way in which you have calculated column K?---Yes.

3    Assumes that every payment you made comes off the principle of

4         the loan?---No, I assume as I mentioned in the course of

5         my discussion, I mentioned my $1 brings the same

6         100 cents and it is a legal tender and I rely that it has

7         got the same properties is (indistinct)(3.28.40) as the

8         money when it comes from Westpac.this bank.

9    Can I put this another way.   Your calculations in column I,

10        reduce the amount outstanding in each case by the

11        deposits that you have made in column D, is that

12        right?---That's right.

13   So I suggest to you that what I said before is correct, you

14        have done this calculation on the basis that all of the

15        money that you've paid over the period of two years and

16        five months before the loan was paid out, is to come off

17        the amount owing?---Mr Strong it can be your

18        interpretation but I have to insist that I have only done

19        the calculation as the legal tender and it is coming from

20        you, from your bank, it has got    that's got the same

21        properties as the legal tender when it is going from me

22        to your bank.    So it has to be offset with each other and

23        that's how the interest would be is calculated.

24   Now, despite that answer is it not the case that, for example,

25        the figure at I13, $50,940.64?---Yes.

26   Represents the figure immediately above it less the

27        $285.13?---That is correct.

28   That is the same for every one of those deposits?---That is the

29        reason why it goes only on those rows where there is a

30        deposit entry.

31   Yes, now is it not the result of that, that no amount of

     .VCH 19/03/07   CD              27                       IYER XXN
     Iyer 07/0269
1         interest is paid on this loan until the final

2         repayment?---I'm not sure about the impact, I can only

3         see I am giving cash and you are giving cash.      I can see

4         only that portion.

5    You are not attending to my question.      I am asking you is it

6         the consequence of your method of calculation that there

7         is no interest payable until the loan is repaid?---I'm

8         not sure whether that's the consequence.      I think you

9         people have got resource enough to identify what is the

10        reason why there (indistinct)(3.31.40) that is a

11        difference.      All I can tell you is what I have done in

12        the plain English manner that I believe the money that I

13        have received has got the same legal properties as the

14        money I returned back to Westpac.

15   HER HONOUR:     I don't understand that.   So perhaps you can just

16        answer Mr Strong's question.      How was that calculation

17        done?---The calculation is done on the basis that the

18        money lent minus the money that I repaid, y, on that I

19        calculated the interest.      On the balance I calculated the

20        interest, assuming the deposit that I madeke back has the

21        same interest claim as when they lent it to

22        me.(indistinct)(3.32.30)

23   MR STRONG:    When do you assume that you pay the interest?---I

24        have to pay interest at the time when I have to quit the

25        loan or when I have repayments.       I have to pay off all

26        the loan I am owing as interest because whenever I have

27        gone anywhere I hire a car or when I go for Telstra

28        telephone expenses, or whatever, they provide the service

29        first and they take the payment - - -

30   So you agree with me, don't you, that in this document, the

31        spreadsheet of your calculations, there is no interest

     .VCH 19/03/07    CD               28                       IYER XXN
     Iyer 07/0269
1         paid to the bank before the date on which the loan is

2         repaid?---The bank is entitled to interest, I am not

3         refusing that the bank is entitled to interest, but in

4         that assumption I have assumed the money that I return is

5         the money that I'm paying back, the principle.

6    My proposition is correct, isn't it, there is no interest

7         payable on this spreadsheet until the end of the

8         loan?---Yes, in March when it is paid.

9    You pay all the interest?---All the interest is paid off, yes.

10   You agree, don't you, that the terms on which the bank lent you

11        the money was that you would have to pay the interest

12        every month?---No, I have opted for a principle and

13        interest loan.     If that was the case I would have opted

14        for interest only option.

15   Could you have a look at the loan offer document again.    Can

16        you see where it says "repayments" at the bottom of

17        page 1?---Yes. , Iit says "After the date you first draw

18        this loan until this loan is fully drawn you will pay on

19        each payment due date the amount specified as due on that

20        date in the written notice given to you by the lender."

21   Yes?---I never received any statement from the bank saying this

22        is the loan due, pay now.     I never received any of this.

23   We will come back to that.    Now look on the second page where

24        it says "Payment due date" in the box with those words on

25        the left?---"Payments are due monthly on each payment due

26        date".     Yes, I have been told I have to make a monthly

27        repayment and I have been told I am making a principle

28        and interest loan, an interest loan, interest - - -

29   Yes, look at the top of page 2?---Yes.

30   Where it sets out what the payment due date will be?---"The

31        billing statement is written on the date 14 days before

     .VCH 19/03/07    CD              29                       IYER XXN
     Iyer 07/0269
1         the payment due date.     It will be interest for the period

2         from and including the previous payment due date and

3         including the calculation date.     In the case of the first

4         billing statement from the date your loan account is open

5         to and including calculation date, the estimated interest

6         for the period" - - -

7    That is enough, you don't need to read any more.    That told you

8         very clearly, didn't it, that interest would be included

9         in every monthly payment?---Mr Strong even now I don't

10        understand what that means here.     At this stage I am not

11        able to understand what it says.

12   It is very convenient, isn't it, that whenever a difficult

13        question pops up you plead you can't understand the

14        language of this document?---I object to your statement,

15        you are calling me a liar.

16   I am suggesting to you that a person of your qualifications and

17        experience wouldn't have any difficulty in understanding

18        these matters?---And you come here and - - -

19   HER HONOUR:     Mr Iyer, all I ask you to do is listen Listen to

20        the questions and answer them.     If you can answer yes or

21        no that is the best way to do it.     If you need to explain

22        then wait until the question is finished before you

23        explain.

24   MR STRONG:    I am suggesting to you, Mr Iyer, I will put it

25        again.     I am suggesting that a person with your

26        qualifications in accountancy and your experience, and in

27        fact your job at the time you entered into this loan as

28        an accountant working in a public accountant's office, a

29        person of your experience and qualifications would have

30        no difficulty in understanding the concepts that are

31        explained in this document?---No, because I was changing

     .VCH 19/03/07    CD              30                       IYER XXN
     Iyer 07/0269
1         my career from being a teacher to an accountant for the

2         first time when I signed this.    I was not even three

3         there months old as an accountant.    Before that I was not

4         an accountant, I was only a teacher.

5    A teacher of what?---Teacher of computing and teacher ing of

6         Australian law and teacher of accounting.

7    Thank you, now coming back to your calculation sheet where you

8         worked out the $1,000.   It is your notion of simple

9         interest, isn't it, that it is interest calculated on the

10        reducing principle but payable at the end of the loan

11        term?---That's all I have been taught Mr Strong.

12   That is what you have been taught.    So, you would deny would

13        you that the idea of simple interest would include

14        interest which was calculated at the same rate but was

15        payable monthly?---I have not been taught that way, that

16        there is a calculation like that, unless there is a new

17        method that has been invented by Westpac., I haven't

18        learned that.

19   It would be the case though would it not, that in the absence

20        of payments of principle interest payable monthly and

21        interest payable annually would be the same?---Could you

22        repeat that please?

23   If you have a loan where there is no reduction of

24        principle?---Yes.

25   And on one loan interest is payable at 6 per cent, payable

26        monthly, and on the other it is 6 per cent payable at the

27        end of the year, the amount of interest will be the same

28        won't it?---No.

29   Yes it will?---No, because you have to recognise that the money

30        that is being paid back by the borrower has the same

31        properties as the money that is being lent by the lender.

     .VCH 19/03/07   CD             31                        IYER XXN
     Iyer 07/0269
1         On that basis the interest calculated on a monthly basis,

2         when a person has been psaying the money back, calculated

3         according to the end of the month balance, at the end of

4         the year will be far different to interest if you

5         calculate straight on the principle that is lent for one

6         year.

7    Yes and that is a function merely of the agreement between the

8         borrower and the lender, that interest shall be payable

9         monthly, isn't it?     That is the consequence of that?---I

10        had not been told to pay interest monthly.     I'd been told

11        to pay principle and interest monthly.     I have never been

12        told - I repeat the point again, if that was the case I

13        would have chosen the interest only option which has been

14        offered to me that time and I didn't choose the interest

15        only option because I endeavoured to pay the principle

16        (indistinct) (3.39.50) the principal than paying the

17        interest first.

18   Did that interest only option give you the opportunity to pay

19        no interest at all until the end of two years and five

20        months?---I didn't even consider it.     I didn't consider

21        that offer at all.

22   You didn't consider it?---Because I wanted to pay only the

23        principle and interest repayment.

24   You said you finally came to work out the amount the bank had

25        charged you in September 2006.     Now, that was four years

26        and a half after you had repaid the loan?---Yes.

27   What was it that happened in about September 2006 that caused

28        you to choose to do thatis?---Is this question at all

29        relevant for me to answer?

30   I am asking it?---You are asking but do I have to answer this?

31   HER HONOUR:     I will ask you to answer the question please.

     .VCH 19/03/07    CD              32                       IYER XXN
     Iyer 07/0269
1         Unless, unless I interrupt Mr Strong you can presume that

2         his questions are relevant.

3

4    MMR STRONG:     So what happened that made you come to do that

5         in September 2006?---I had another loan with another bank

6         and I find that I keep paying the money but my loan

7         amount doesn't keep going down.     As I expected it to go

8         down, it doesn't go down. I just wanted to find out what

9         is really happening here, what is going on.     Then I sat

10        down, I prepared an Excel spreadsheet.     First - I don't

11        know why I took first Westpac, because that's the first

12        company from where I took the loan, because I also

13        transferred the loan so I knew that it is a starting

14        point and end point in that company loan, so I took the

15        bank statements, checked to see whether I can work out

16        how the interest is affecting my loan balance there.

17        Then I found I had to work out how that has been

18        calculated if my assumption of what I understood from the

19        document as simple interest is correct.     I went through

20        and I found I ended up when I prepared the Excel sheet

21        for the entire period of 25 years, assuming what would

22        have happened if I'd stayed with Westpac for 25 years I

23        came out with a figure that I would have ended up paying

24        51 per cent more than what I was supposed to be paying.

25        That's the starting point.

26   So you are asking Her Honour to accept that all that time from

27        1999 right through to September 2006 you thought that the

28        bank calculated your interest?---Simple interest.

29   On the basis that you say it should have?---I honestly believe,

30        I sincerely believe, and I have very high regard for

31        Westpac for having given me the loan to make my dream

     .VCH 19/03/07    CD              33                       IYER XXN
     Iyer 07/0269
1         come true.      So I trusted them very much and I was hurt

2         very much when I found something opposite.

3    But you accept, don't you, that the documents that Westpac

4         provided to you at the time of your loan did state the

5         way in which Westpac was going to calculate the

6         loan?---That's exactly what I'm saying again.      I could

7         not comprehend, I cannot understand - - -

8    I am not asking you what you understood.     I am asking you what

9         you now understand?---Yes.

10   You now understand that the way in which Westpac described its

11        calculations in those documents is the way that it did in

12        fact calculate the interest?---When I find somebody has

13        taken some money from my pocket, later on they come and

14        say why they took it?

15   No, you are not answering my question.     Do you accept that the

16        documents that you signed and took away with you on

17        11 October accurately described the way in which Westpac

18        does in fact calculate its interest?---It doesn't, it

19        doesn't describe what I understood Westpac is doing.

20   I know what you understood.     I am asking you now to speak from

21        your present knowledge?---Correct.      On the present moment

22        even now I told you I cannot understand that portion that

23        you are talking about on page 2.

24   But you do understand the way in which Westpac calculated the

25        interest?---No I find that Westpac has calculated

26        interest in a compounding way than in simple interest.

27   I understand that, and there is nothing in the documents that

28        is different from the way in which Westpac has actually

29        calculated the interest, is there?---I repeat again, I

30        can't still understand that is the way it is done because

31        of the fact I still don't understand what is on page 2.

     .VCH 19/03/07   CD                34                      IYER XXN
     Iyer 07/0269
1    MR STRONG:    I have no further questions.

2    HER HONOUR:     The loan offer document, there is a paragraph that

3         starts "repayments."      There is a paragraph you have been

4         taken to that starts "repayments" and on the next page

5         there are five dot points.       Now, which of those dot

6         points don't you understand?---The first dot point says

7         that they wanted me to start - but I don't know what is

8         there to start. Like when I read the entire paragraph I

9         really cannot comprehend what that whole paragraph means

10        there.

11   So you don't understand any of those dot points?---Well I don't

12        have the ability to comprehend that it means compounding.

13   I am not interested in what it is called, it can be called

14        anything, but what is it in those paragraphs that you

15        don't understand?---The way that they are saying how they

16        will calculate the first billing statement and the

17        calculation date. There is no calendar that has been

18        given to me as a calculation date and there is no

19        estimated interest that has been told to me as estimated

20        interest.     It says about ongoing amounts - I don't

21        understand what that ongoing amounts means.

22   Are there any other matters you want to put to me arising out

23        of the things that you have been asked by

24        Mr Strong?---Sorry, can you please repeat that?

25   Are there any other matters that you want me to take into

26        account in making my decision today?---Yes, the fact that

27        the document not clear for me to understand in the

28        beginning and this mention that in 2006 September, that's

29        four years after I repaid the loan, I am in front of you

30        trying to explain this, if this has been done before I

31        signed the loan document I don't think I had to spend any

     .VCH 19/03/07    CD              35                        IYER XXN
     Iyer 07/0269
1         time to waste your time or my time or their time.

2    All right, can I perhaps just ask you this.    Just to make this

3         quite clear - you have set out in some earlier documents

4         on the file a claim which you had for several different

5         sums of money.    Are you still pursuing those claims or is

6         it just the $1,001.89?---I pursue all the claims that I

7         mention in the five page document I have sent as a

8         summary.

9    Perhaps you could go through with me those amounts?---On page

10        2.

11   What is the date of that - right, well I can't see there any

12        amounts?---On page 3.

13   Page 3, all right.    So are you still pursuing these

14        amounts?---I can probably point out to you that on page

15        3, first the sentence up to 51.314 per cent, up to that

16        much, can be substituted with $1,001.89.

17   So, instead of $20,331.34 the amount there should be

18        $1,001.89?---No, $20,331.34 is the total interest I paid.

19   Yes?---But I have calculated - on that I multiplied 51.31 per

20        cent which was an average percentage I worked out, which

21        was wrong and that should not be $10,432.89, that should

22        be exact amount as how much I paid more in those two

23        years' time, which is $1,001.89.

24   So instead of $10,432.89?---Yes, it should be $1,001.89.

25   So it is $1001.89 cents.    You said that it was a joint loan

26        with your wife?---Yes.

27   Is your wife here today?---She is waiting outside.

28   Do you have her authority to claim that amount on her

29        behalf?---Yes.

30   You say legal costs in bringing this matter before you,

31        $553.60.   How have you worked that out?---That's what I

     .VCH 19/03/07   CD              36                        IYER XXN
     Iyer 07/0269
1         pay to VCAT.

2    To?---VCAT, the Tribunal.

3    So that is payments of fees to VCAT?---To the Tribunal yes.

4    All right, now how do you justify the balance of the sum?   Are

5         you still claiming this compensation?---Yes.

6    For the torture, trouble and turmoil?---Yes.

7    How do you claim that?---During the period of this repayment of

8         loan I have gone through so many different difficulties

9         in my life which I don't want to mention here.    They are

10        a private part of my life, but it had the potential to

11        cost so much of a person's life.    I never worried about

12        any of those, I committed to paying the monthly repayment

13        I paid, and in 2006 September when I work out I find that

14        even $230 for water when I had to pay, I had difficulty

15        to pay once upon a time, and I find it's because of the

16        error the bank has been committing and has not been

17        disclosed and the amount of skill that is required even

18        now at this stage, I have spoken to hundreds of people

19        and they cannot understand that the bank is charging

20        compound interest.

21   If I might just interrupt you there.    You say you were charged

22        $1000-odd more over that period of two years?---Correct.

23   You are claiming $1 billion in general damages?---Yes - - -

24   You think that makes sense?---In terms of the skill level that

25        is required to bring it to your attention to make things

26        clear, I don't think today there is anybody on the street

27        who can bring this clear to this court or any other court

28        in a clear manner to make a person understand there is a

29        hidden message in their contract of compound interest.

30        They are not clear, they are not straightforward.    They

31        are having false, misleading and deceptive conduct.

     .VCH 19/03/07   CD            37                         IYER XXN
     Iyer 07/0269
1    Is there anything else you want to say to me as to how that

2         claim is calculated.     Any other matters you want to rely

3         upon in relation to that claim?---In terms of the number

4         of such cases, the number of people affected, the amount

5         of impact to the society and everything added together,

6         since I brought this to light, since I brought it to the

7         attention of the court I believe I am worthy of making it

8         clear.

9    HER HONOUR:     Is there anything arising out of that Mr Strong?

10   MR STRONG:    No your Honour, but in answer to an earlier

11        question of your Honour's he said he was still pursuing

12        all the matters on page 2 of his 1 March document.       I

13        didn't take him to item 2 of the claim because he didn't

14        give any evidence about compliance with the

15        mandatory - - -

16   HER HONOUR:     This is a case about Mr Iyer and what he has lost,

17        it is not a case about the general community or anyone

18        else in the community who may have entered into some

19        contracts with Westpac of various kinds so I would

20        perhaps indicate that I am not going to see as relevant

21        any evidence about non-compliance with mandatory

22        comparison rate legislation unless it impacts on this

23        case.

24   There are no issues on page 2 that you want to give evidence

25        about?---Yes, even now when I want to buy another

26        property I want to look at the interest rate quoted by a

27        different bank and the mandatory comparison rate that is

28        quoted still doesn't incorporate the cost of the loan

29        which is including the compounding rate so it is still

30        misleading a person to go ahead and sign a loan agreement

31        so that is what I brought under section 9 of the

     .VCH 19/03/07    CD              38                         IYER XXN
     Iyer 07/0269
1         statutory Act.

2    HER HONOUR:     Yes?---It has got a likely potential to mislead a

3         person still.

4    MR STRONG:    Mr Iyer, do you base the assertion that the current

5         advertisement of mandatory comparison rates doesn't

6         reflect the true cost of the loan on calculations of the

7         kind that you did for your own loan?---Yes, it doesn't

8         reflect correctly the rate.

9    So those are the calculations in which you have done sample

10        loans of different amounts and different periods and you

11        have worked out the difference between the rate quoted by

12        the bank and the true rate if the interest was all

13        postponed until the end of the loan period?---Can you

14        repeat that please, my concentration has - - -

15   You have done calculations, like the one that we discussed

16        earlier, for different amounts and different

17        figures?---Yes.

18   Different loans?---Yes.

19   Based on the proposition that the interest is not to be payable

20        until the end of the loan?---That's not the proposition I

21        had.     I had the assumption that my money has got the same

22        properties as your money has got and on that basis I

23        offset the money I paid in terms of the money that you

24        lent.

25   Yes and that means that all the money you paid should be taken

26        off what you owe?---Yes.

27   And then when you repay the loan you can repay the interest at

28        that time?---Yes.

29   That's right.    Now can you have a look please at this document.

30        I have given you an extract from the Consumer Credit

31        Regulations and it is Regulation 33F. Do you see

     .VCH 19/03/07    CD              39                       IYER XXN
     Iyer 07/0269
1         that?---Yes.

2    Could you have a look at page 39 starting with the letter 3,

3         "the comparison rate is given by the following

4         formula"?---Yes.

5    Do you see the formula there?---Yes.

6    Do you see the way in which the elements of that formula are

7         defined?---Do you think I understand any of the formula?

8    I am asking you first, do you see that NRJTAJ, all that and so

9         on?---Yes.

10   When did you first see that formula?---By the courtesy of

11        Westpac last week on 13 March, that's the first time I

12        have got this.   In fact in my discussion with Tim Goss of

13        Westpac on 16 November or whenever I have been informed I

14        have requested him to send only one line of information

15        something like this saying that the bank is charging

16        compound interest as per some legislation, that is all I

17        asked.

18   Never mind your conversation with Mr Goss.   You have told Her

19        Honour that the first time you saw this formula was last

20        week, is that right?---On 13 March yes.

21   So none of the calculations that you made for the purposes of

22        your assertion that the bank isn't complying with the

23        mandatory comparison rate legislation were made using

24        this formula?---It is still not plain because the

25        legislation says compounding frequency is supposed to be

26        disclosed and I don't see any of your advertisements

27        disclosing compounding frequency as compounding monthly,

28        compounding quarterly, compounding half yearly or

29        compounding annually.   Nothing is being disclosed.

30   I am sorry Mr Iyer, what are you referring to?---33F, ss.2

31        "Comparison rate must be calculated as a nominal rate per

     .VCH 19/03/07   CD             40                        IYER XXN
     Iyer 07/0269
1           annum together with the compounding frequency in

2           accordance with the section."      The compounding frequency

3           when your frequency is every fortnight, if you compound

4           every fortnight the interest rate is different. If you

5           compound every month the interest rate is different, if

6           you compound every quarter, different, half-yearly

7           different, annually different, in spite of the fact the

8           annual rate you quote is totally different.

9    Yes, now Mr Iyer, you have put forward to the Tribunal the

10          proposition that a particular document that you extracted

11          from Westpac's website - do you know the document to

12          which I refer?---Yes, I think A6 you are talking about.

13   MR STRONG:     It is A6 in your bundle.    Does your Honour have

14          that?

15   HER HONOUR:     Yes, I think I do yes.

16   MR STRONG:     It is a two page document, one is called simple

17          interest compound interest conversion table and the other

18          is a printout from a page on the website?

19   HER HONOUR:     Yes.

20   MR STRONG:     Now Mr Iyer, you say that on your calculations the

21          comparison rates shown on that website are wrong?---Yes.

22   Yes.   But your calculations were not made using the formula in

23          these regulations, were they?---But using the - using the

24          information - - -

25   Never mind about that, I am asking you a question.       Did you

26          make your calculations using the formula in the

27          regulations?---That part I cannot understand.

28   You can't understand it.     So you have no idea whether Westpac's

29          disclosures on the website do or do not comply with that

30          formula, have you?---I know it is not compliant with the

31          condition.

     .VCH 19/03/07    CD              41                         IYER XXN
     Iyer 07/0269
1    Never mind that, I am asking you about the formula?---I'm not

2         sure.

3    You don't know, do you?---No.

4    And you couldn't know because you don't understand the

5         formula?---No.

6    MR STRONG:    No further questions.

7    <(THE WITNESS WITHDREW)

8    HER HONOUR:    Mr Iyer, is there any other evidence.

9    MR IYER:   I have a request that if VCAT can seek expert opinion

10        on the Excel projection I have done I am prepared to bear

11        the cost for the Excel projections to show the compound,

12        the alleged situation between compound and simple

13        interest because simple interest is quoted and applied.

14        It has got a certain character and if it is compound

15        interest as long as the term of the loan the actual

16        effective rate is much higher and if the frequency of

17        compounding is very quick the interest rate that results

18        is very high. For a lower term, if we take a loan for

19        five years, it is beneficial to take a loan for five

20        years at a higher rate that is quoted by the bank,

21        compounding monthly, than taking a loan for 25 years,

22        interest rate quoted lower but effective interest rate

23        comes to, compounding comes to the highest rate of

24        interest they are paying.    Since I have derived this

25        table based on whatever is there, as in A6, I have

26        provided evidence of one of the authors of a textbook

27        here who says in theory that is what is the impact.       In

28        Excel I have proved the theory is correct.

29   HER HONOUR:    But Mr Iyer, what I need to decide is whether

30        Westpac owes you any money by reason of the contract that

31        you took out with them.    You say you have done

     .VCH 19/03/07    CD              42                     DISCUSSION
     Iyer 07/0269
1         calculations and the calculations that you have provided

2         me with are calculations which, if the way you calculate

3         the loan is correct, there is $1,001 difference between

4         what Westpac has charged you and what you say you

5         owe?---Yes.

6    Now there is no value in an expert coming along because you

7         have done this calculation yourself.      The question is

8         whether or not you should be entitled to make this

9         calculation given that the written documents you have

10        signed with Westpac refer to the calculation being made

11        in another way.     There is no expert evidence that is

12        going to help me determine that.     Are there any other

13        matters you want to put or any other evidence you want to

14        bring to my attention?

15   MR IYER:   Not that I can think of, offhand.

16   HER HONOUR:    Mr Strong.

17   MR STRONG:    Your Honour Mr Iyer bases his claim on the

18        proposition that at the time that he entered into his

19        loan contract with Westpac he was under a misapprehension

20        as to the way in which Westpac would calculate interest

21        and that he believed, contrary to the terms of the

22        document, that interest on his loan would be payable

23        calculated on the declining balance of principle to which

24        all his monthly payments would be applied, and payable

25        once he had paid off the principle.

26                 There is nothing in Westpac's documents which would

27        have induced such a belief in him. The only thing he

28        could say is that there was an omission from Westpac's

29        documents such that he should have been but wasn't

30        disabused of this particular notion.

31                 Our first submission is that the loan offer letter

     .VCH 19/03/07    CD              43            ADDRESS (MR STRONG)
     Iyer 07/0269
1         and the "You and Your Loan" terms and conditions booklet

2         do make it abundantly clear that interest on the loan

3         will be charged on daily balances and debited to the

4         account monthly and that payments to the account would be

5         applied to any unpaid interest before the principle is

6         reduced.     The question is whether if Mr Iyer was not

7         disabused of his different idea by these documents,

8         whether Westpac is to be held responsible for that,

9         because it could only be if Westpac was responsible for

10        that, that there could be any suggestion of either

11        misleading or deceptive or unconscionable conduct.

12                 Mr Iyer says that he read these documents on the day

13        that he got them, even if not before he signed them, and

14        he acknowledged as was pointed out in the loan offer

15        letter at page 7 that he could have withdrawn from the

16        loan contract at any time up to the first draw down which

17        took place 11 days later.     He acknowledged that he was

18        happy with the documents and wanted to go ahead but he

19        says here that he didn't understand them.     In my

20        submission your Honour should have considerable

21        reservations in accepting that his level of understanding

22        or lack of it was as he has said today.     It seems quite

23        extraordinary that a person who had, up to three months

24        before he had taken the loan, been a person who was

25        teaching subjects such as law and accounting and business

26        management I think he said?

27   HER HONOUR:    Personal management.

28   MR STRONG:    Personal management, would have the difficulties

29        understanding the quite plain English, even if technical,

30        language of these documents.     But even if it is the case

31        that your Honour accepts that he didn't understand these

     .VCH 19/03/07    CD              44           ADDRESS (MR STRONG)
     Iyer 07/0269
1         documents and not understanding them, nevertheless,

2         thought that they were fine then in my submission your

3         Honour could not find that Westpac was guilty of any

4         misleading or deceptive or unconscionable conduct in

5         preparing these documents in the way that it has, putting

6         forward the explanations that it did and expecting that a

7         person who did not understand them when they read them

8         would either get advice or raise the question, but

9         otherwise expecting that as best that could be done the

10        matter has been plainly and clearly explained to the

11        borrower.

12                 It is quite true, as the bank officer said when the

13        documents were signed, that these were standard terms.

14        Mr Iyer accepted them as such, he read them after he

15        signed them and he could have come back and complained or

16        said he didn't understand them.    He did none of those

17        things and the bank, in my submission, is not to be held

18        responsible if you accept that he didn't.

19              The second submission is that Mr Iyer has not even

20        demonstrated that the $1,000 is actually a loss.    What he

21        said was that if he had known about the way in which the

22        bank would calculate the interest he wouldn't have gone

23        ahead with this loan, he would have postponed purchasing

24        the property and building a house and saved up a bigger

25        deposit.    Well, he has to show that he is worse off for

26        having gone ahead and bought the property in 1999 and

27        sold it in 2002 compared with whatever else he was going

28        to do.     It is not a case where he took the loan on the

29        terms offered by Westpac where he has given evidence that

30        he could have got a loan on the terms that he likes from

31        somewhere else so we submit that in terms of the High

     .VCH 19/03/07    CD             45            ADDRESS (MR STRONG)
     Iyer 07/0269
1         Court's decision in Marks v GIO which deals with the

2         distinction between actual and expectation losses, and to

3         which attention we drew to Mr Iyer in a letter last week,

4         he has not established even that the $1,000 is a loss.

5               His claim for costs will fall to be decided if and

6         when we have an argument whereby he applies for his

7         costs.     His claim for exemplary damages can be answered

8         in two short points.     The first of them is that this is a

9         proceeding in which he is seeking damages pursuant to

10        section 159 of the Fair Trading Act.       Section 159 is the

11        provision, Your Honour, which allows a person who has

12        suffered loss, injury or damage because of a

13        contravention of a provision of the Act to recover the

14        amount of that loss or damage and they can do so in a

15        court or in this Tribunal.       Section 159 does not

16        authorise exemplary damages.

17                 Can I hand up to your Honour and provide to Mr Iyer

18        some authorities.     I don't want to go in detail to the

19        authorities but I just want to point to - No. 6 is the

20        decision of Justice Wilcox in the Federal Court in Nixon

21        v Phillip Morris Australia and at paragraphs 99 to 103

22        His Honour deals with a submission that exemplary damages

23        are not recoverable under sections 82 or 87 of the Trade

24        Practices Act.    Those two sections are the equivalent of

25        159 and 158 of the Fair Trading Act.       At 103 his Honour

26        concludes, "I accept it may be possible in an appropriate

27        case to recover aggravated damages as loss or damage

28        within the meaning of section 82 or 87, however it seems

29        to me clear that exemplary damages cannot fall into that

30        category.     I am of the opinion that in the present case

31        it is not open to any of the applicants or group members

     .VCH 19/03/07    CD              46             ADDRESS (MR STRONG)
     Iyer 07/0269
1         to recover exemplary damages in relation to any

2         contravention of section 52 that they may prove."

3               Then at tab 7 there is the decision of the New South

4         Wales Court of Appeal in a case called Harris v Digital

5         Pulse.     It is a very long decision, we probably didn't

6         need to copy it all.      This is a case in which the Court

7         of Appeal delivered a unanimous judgement rejecting the

8         proposition that - well a majority judgement perhaps -

9         rejecting the proposition that there could be exemplary

10        damages for a breach of fiduciary duty and at page 334 of

11        the report at paragraph 186 it says, "The Trade Practices

12        Act provides no analogy because punitive remedies are

13        excluded by the terms of section 82" and they cite the

14        amount of the loss and damage and, "Section 87 compensate

15        for or prevent or reduce loss and damage" and they cite

16        Nixon v Phillip Morris Australia as authority for that.

17        That is, I think, Justice Heydon speaking in that

18        particular - no, President Mason.

19                 The language of sections 159 and 158 is relevantly

20        similar to the Trade Practices Act.     Section 159 refers

21        to recovering the amount of the loss or damage.     Section

22        158 refers to an order that the defendant pay the amount

23        of any loss or damage suffered by the injured person.

24        That is sub-paragraph 2(e).

25                 The second point to make is that in my submission

26        section 108 of the Fair Trading Act which gives the

27        Tribunal the power to hear and determine a consumer and

28        trader dispute doesn't have the effect that the Tribunal

29        is in a different position to the court and can award

30        exemplary damages.     It is true that exemplary damages are

31        referred to specifically in 2B(2), however in my

     .VCH 19/03/07    CD              47           ADDRESS (MR STRONG)
     Iyer 07/0269
1         submission sub-s.(2) is a series of powers in aid of the

2         jurisdiction conferred by sub-s.(1) and the Tribunal is

3         to hear and determine a consumer and trader dispute under

4         sub-s.(1) according to law.      It is only where the

5         underlying rights, legal rights and liabilities of the

6         parties give rise to a right to a right to exemplary

7         damages that the Tribunal's power to award them is,

8         effectively, enlivened.

9               There is some debate amongst members of the

10        Tribunal, Your Honour, about to what extent the Tribunal

11        is found to herein determine its disputes according to

12        the law.    I have given your Honour a couple of

13        references.      There is a decision of the learned

14        President, Justice Morris, at tab 13 in which he suggests

15        that perhaps the Tribunal is not required to hear and

16        determine disputes according to law.      That is in the

17        second volume of authorities.      The relevant passage is

18        from 33 to 41 and his Honour at 41 says, "Sections 108

19        and 109 seek to overlay the common law and actions based

20        on contravention of statute with substantive principles

21        based on fairness pursuant to which certain disputes may

22        be resolved."    In my submission his Honour intends by

23        that to say that the Tribunal's jurisdiction under

24        section 108 is otherwise than to hear and determine

25        disputes according to law and we respectfully disagree

26        with him.

27              It is true that 109 explicitly gives the Tribunal

28        power similar to section 158 to adjust legal rights by

29        varying a contract for example but the indications      we

30        would suggest are that when you look at the definition of

31        consumer and trader dispute at section 107(2) it refers

     .VCH 19/03/07    CD              48            ADDRESS (MR STRONG)
     Iyer 07/0269
1         to disputes or claims in negligence, nuisance or

2         trespass, for example relating to the supply of goods, we

3         are talking legal terms of art there, and courses of

4         action that are known to the law.

5                  The powers that are exercised under section 109 are

6         exercisable in the course of determining a consumer

7         dispute or a trader trader dispute which are subsets of

8         consumer trading disputes, and there is specific power to

9         vary contracts and there is power to make any order it

10        considers fair but in our submission whatever limits

11        there are on that power it has got to be done in the

12        context of hearing and determining the dispute according

13        to law and possibly, if fairness calls for it, adjustment

14        of legal rights and perhaps that could be done.

15   HER HONOUR:    So if it is a statutory remedy you say that

16        exemplary damages won't apply, it will only apply if it

17        is a claim in negligence, nuisance, trespass in which

18        there is a right under the common law for exemplary

19        damages?

20   MR STRONG:    Yes.

21   HER HONOUR:   There is no right, you say, to exemplary damages

22        if it is a statutory breach?

23   MR STRONG:    Well not this particular statutory breach because

24        the language of it is confined to recovering actual loss

25        and damage and the definition of exemplary damages is

26        that it is not actual loss, it is an award made to punish

27        the defendant.

28   HER HONOUR:    Of course it would be open to parliament to

29        provide legislation which would include the right to

30        claim exemplary damages as part of a statutory breach?

31   MR STRONG:    Yes.

     .VCH 19/03/07    CD             49            ADDRESS (MR STRONG)
     Iyer 07/0269
1    HER HONOUR:    But given the authorities you have referred me to

2         and given that there is no right in the sections under

3         which this claim is made for exemplary damages, you say

4         that 108(2)B(ii) must be confined to the claims in

5         negligence, nuisance or trespass that are referred to in

6         paragraph - - -

7    MR STRONG:    Yes, or possibly other common law claims where

8         there is - like defamation.        Perhaps it has been

9         abolished now, defamation, but if it hadn't, maybe that.

10   HER HONOUR:    Yes.

11   MR STRONG:    But wherever a court could award exemplary damages

12        then say too could the Tribunal, but the Tribunal hasn't

13        been liberated from the law to the extent it can go and

14        create a new classes of case in which exemplary damages

15        can be awarded.

16                 The last point we make about exemplary damages is

17        that Mr Iyer has given no evidence at all which would

18        even remotely begin to justify any award of exemplary

19        damages, let alone the amount he is claiming.

20                 We have provided Your Honour with two cases on

21        exemplary damages, both cited in the High Court of

22        Australia.       They are the first two cases in volume 2 of

23        the authorities.      The first is Uren v John Fairfax & Sons

24        and in that case the court declined to follow a decision

25        of the House of Lords which confined exemplary damages to

26        certain categories.       They re-stated the law in cases in

27        which exemplary damages could be awarded and the accurate

28        flavour of it is found, for example, in the judgement of

29        Justice Taylor at 129 at the bottom of the page.         It says

30        that the law relating to exemplary damages both in

31        England and in this country was that "Damages of that

     .VCH 19/03/07    CD                50            ADDRESS (MR STRONG)
     Iyer 07/0269
1         character might be awarded if it appeared that, in the

2         commission of the wrong complained of, the conduct of the

3         defendant had been high handed, insolent, vindictive or

4         malicious or had in some other way exhibited a

5         contumelious disregard of the plaintiff's rights."     That

6         expression that I have just said, "contumelious disregard

7         of the plaintiff's rights" is adopted as a good or

8         reasonable summary by the other members of the court.

9               In the subsequent decision which is at tab 9 of the

10        authorities, Lamb v Kotongo, the High Court again had

11        occasion to consider the availability of exemplary

12        damages and in a joint judgement the court held that - if

13        one goes to the discussion starting at page 7 of the

14        report, at the bottom of page 7 the court adopted and

15        confirmed the position that was adopted in Uren v John

16        Fairfax & Sons.   At the top of page 8, "Notwithstanding

17        their Lordship's confined their remarks (indistinct) what

18        was said by this court in Uren v John Fairfax not so

19        restricted are the well settled judicial approach in

20        Australia that extends exemplary damages to a wider range

21        of torts."

22              Then they cite with approval passages above on page

23        8, Mayne and McGregor on damages.   "Such damages are

24        called punitive, vindictive, exemplary and even

25        retributory damages.   They can apply only where the

26        conduct of the defendant merits punishment which is only

27        considered to be so where his conduct is wanton as we

28        have discussed as fraud, malice, violence, cruelty,

29        insolence and the like as it is sometimes put where he

30        acts in contumelious disregard of the plaintiff's

31        rights."

     .VCH 19/03/07   CD             51           ADDRESS (MR STRONG)
     Iyer 07/0269
1                  Now that is the law of the country and there is no

2         evidence of anything of the kind here.     All that could be

3         said is if your Honour though we had deceived Mr Iyer in

4         any way, is that we failed to appreciate that he didn't

5         understand our documents.

6    HER HONOUR:    Thank you.

7    MR STRONG:    Mr Iyer has said in his claim document that he

8         wants an injunction restraining Westpac or ordering

9         Westpac to cease its lending activities in Victoria.

10   HER HONOUR:    That hasn't been mentioned today.   I don't think

11        it is necessary for you to go into that matter unless an

12        application is made.

13   MR STRONG:    In that case there are no further submissions.

14   HER HONOUR:    I will adjourn the court now until 10.30 tomorrow

15        morning.     The Tribunal list might say 10 o'clock but it

16        will be 10.30 tomorrow morning.

17   ADJOURNED UNTIL TUESDAY 20 MARCH 2007




     .VCH 19/03/07    CD              52           ADDRESS (MR STRONG)
     Iyer 07/0269

				
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