Docstoc

CD__A

Document Sample
CD__A Powered By Docstoc
					                    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?

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        file will be brought to you.

19                 As I understand it there is a document headed

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

21        and background."       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         institution operating in Victoria, not abiding by the

2         requirements of the Fair Trading Act, 1999.

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

4         you claim comes under?

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

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

7         unconscionable conduct.    Section 9 for misleading

8         deceptive conduct and section 11, misleading conduct in

9         relation to sub-leases.

10                 This case is about the justification and not the

11        legitimacy of charging compound interest on home loans,

12        car loans and personal loans in Victoria.

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

14        Westpac?

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

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

17        bringing that as part of this case.

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

19        loan.

20   MR IYER:   Only.

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

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

23        National Australia Bank, yes.      I am not here about to

24        talk about the rate of interest, advice and the

25        fluctuations in the interest rates in the market due to

26        market economic conditions.      I am not here to talk about

27        the rights of the licensed lender, whether they have a

28        right to charge compound interest or simple interest, I

29        am not talking about those.      I am not here to talk about

30        the borrower's duty to pay interest at an agreed rate,

31        subject to changes due to and only due to market

     .VCH 19/03/07    CD              3                      DISCUSSION
     Iyer 07/0269
1         fluctuations.     What I mean is if the interest that is

2         being charged on me is only due to market fluctuation I

3         have got no questions about those, only in case there is

4         something hidden that is not being told.     That is what I

5         am coming up to.

6                  This case is not about whether it is appropriate or

7         not that compound interest charged by the licensed lender

8         is tax deductible or as interest expense in productive

9         loans.     I am not bringing any tax related matter into

10        this case.

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

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

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

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

15        two paragraphs.     There are only two paragraphs that I am

16        here to speak about as the primary reason why I have

17        brought this before you.     It is false, misleading.   In

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

19        duty to be disclosed, I should have been told and they

20        have not told until just I had surprise information that

21        has been disclosed what happened just last week, which

22        never took place for all this time when I have been

23        requesting and begging around to show me.     Where this,

24        how are you charging compound interest, simple interest?

25        Nobody ever bothered about my problem, so I need to bring

26        that and suddenly only I have brought it in front of VCAT

27        and that too only when I insisted that I go for a

28        hearing at the time I get some kind of legal reference

29        that has been provided by the courtesy of their

30        representation.

31   HER HONOUR:    So this case is about your home loan.   You have

     .VCH 19/03/07    CD              4                      DISCUSSION
     Iyer 07/0269
1         documents in relation to the home loan that you entered

2         into with Westpac?

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

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

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

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

7         which was a division of Westpac.      It is   loan offer

8         document and it is dated - - -

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

10        date.

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

12        document?

13   MR STRONG:    Yes I do.

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

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

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

17        prepared on 7 October 1999.      That happened to be a

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

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

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

21        document.    We couldn't go on Friday and we had an

22        appointment on Monday which was 11 October.

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

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

25   MR IYER:   Yes, myself and my wife.

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

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

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

29        11 o'clock in the morning and the manager there

30        congratulated that we are getting our home and our loan

31        has been approved and we just have to sign the document.

     .VCH 19/03/07    CD              5                       DISCUSSION
     Iyer 07/0269
1         They showed where I had to sign and I requested the

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

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

4         trusted this because they have got nothing particularly

5         against me to prepare a separate document.

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

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

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

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

10        want to have an understanding because, although there has

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

12        understanding of what the case is about.        So are you

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

14        into the witness box?

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

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

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

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

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

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

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

22        twice.     Perhaps you can just summarise the amounts you

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

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

25        about the circumstances of your claim.        So what amounts

26        are you owed under this contract, and why?

27   MR IYER:     The amount that I have worked out that I presented to

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

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

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

31        supposed to pay.      Then I got the different counsel

     .VCH 19/03/07    CD                6                      DISCUSSION
     Iyer 07/0269
1         presentation saying that that was an average and they

2         wanted to work out on daily basis, daily compounding

3         basis whatever, applying the logic that I have presented,

4         and I did the calculation again and when I did the

5         calculation it comes to - the respondent has come up

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

7         supposed to pay.      Unfortunately in spite of this case

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

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

10        more is $1,001.89.

11   HER HONOUR:   $1,001.89.

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

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

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

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

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

17        only after I came to VCAT.

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

19        have been overcharged on this loan contract.

20   MR IYER:   $1,001.89.

21   HER HONOUR:   So is that your claim?

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

23        what I have paid more from my pocket.

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

25   MR IYER:   That's right.

26   HER HONOUR:   And that's all?

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

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

29        I was claiming there.

30   HER HONOUR:   Well you don't get exemplary damages from

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

     .VCH 19/03/07   CD                7                     DISCUSSION
     Iyer 07/0269
1         haven't had solicitors act for you?

2    MR IYER:   No.

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

4    MR IYER:   Right.

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

6         overcharged on this loan is $1,001.89?

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

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

9         more.

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

11   <HARIHAN IYER, sworn and examined:

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

13        name is Hariharan Iyer and the address is 16 Cuthbert

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

15        accountant.

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

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

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

19        which was signed by yourself and your wife on

20        11 October 1999.   So perhaps you can now tell me under

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

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

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

24        housing rate.

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

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

27        percentage rate, variable housing rate which is currently

28        6.55 per cent per annum will apply.

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

30        understanding and education 6.55 per cent per annum to me

31        straight away rings that bell that it is an annual

     .VCH 19/03/07    CD             8                         IYER XN
     Iyer 07/0269
1         interest rate which I studied in mathematics as simple

2         interest.

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

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

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

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

7         taught me.

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

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

10        better than another bank that is offering the same loan

11        for me and I have been always taught that interest

12        percentage per annum which certainly rang the bell to me

13        only as simple interest.      Unsuspectingly I have gone, I

14        have signed the contract, I have commenced repayment, I

15        have asked my question to the manager because checking

16        the signature, whether it's a standard contract, which he

17        agreed it's a standard contract.        I didn't have anything

18        to suspect a reputed licensed institution to be saying

19        something to me and doing something in their calculation.

20        I trusted everything is right, I have paid my home loans

21        on regular repayments without any default.        I have been a

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

23        that the amount that they have calculated is not really

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

25        five or six months back I sat down to find out whether

26        all the interest they have charged they are entitled or

27        not.   I worked out a hypothesis, because in mathematics

28        always my teachers have taught me saying that we start

29        with an hypothesis of unknown item as "x" or unknown item

30        as "100."        So I started my calculation as $100,000 as a

31        home loan that somebody is borrowing.

     .VCH 19/03/07    CD                9                         IYER XN
     Iyer 07/0269
1    I do not want to deal with hypothesis. I want to deal with this

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

3         you thought was meant by the words "Standard

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

5         type of contract except that they insert only the actual

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

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

8         being inserted when it's a standard contract.

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

10        calling the contract a standard contract in this

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

12        standard contract except that the standard contract

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

14        compounding monthly.   They have failed to mention, failed

15        to alert me that this is a compound monthly concept they

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

17   Why do you say that should have been disclosed to

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

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

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

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

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

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

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

25        going to be charged for interest and what you were

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

27        stayed with them only for two years.

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

29        you had known about that you wouldn't have entered into

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

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

     .VCH 19/03/07    CD             10                         IYER XN
     Iyer 07/0269
1         a period of 25 years it is 47 per cent more than what I'm

2         supposed to pay.

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

4         what you have lost?---Right.

5    But you say you thought this was a simple interest rate but in

6         fact it is compound interest rate and, as a result of

7         that you have lost $1,001.89?---Yes.

8    Are there any other matters about entering into this contract

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

10        the loan approval, the way the contract has been

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

12        this contract because I didn't apply for the loan

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

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

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

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

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

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

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

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

21        a claim against Westpac?---Sure.

22   You are not saying you were pressured to sign by

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

24   You were?---Yes.

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

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

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

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

29        thought probably if there is something that is customary

30        of trade practices in Melbourne I would have expected the

31        bank to alert me to go to a solicitor and get an opinion

     .VCH 19/03/07   CD             11                          IYER XN
     Iyer 07/0269
1         before I sign.

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

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

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

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

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

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

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

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

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

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

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

13        agreement?

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

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

16        this letter and the accompanying booklet of standard

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

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

19        reading from this portion.

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

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

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

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

24        is any inconsistency the letter prevails."

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

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

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

28        charged on interest."    I have not come across in the

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

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

31        p.10 has got     point 9, condition F "How the lender

     .VCH 19/03/07   CD               12                          IYER XN
     Iyer 07/0269
1         applies your repayments" and it is set out if you have

2         the subsidised loan we will apply all payments made by

3         you in the following order "to the extent the payment

4         covers each amount, first any unpaid government charges"

5         No disputes about that.    Second "Any unpaid enforcement

6         expenses" no questions about that.       Third, "Any unpaid

7         interest which has been debited to the loan account on or

8         before the date of payment."       Fourth, "Any other unpaid

9         fees and charges" no questions about that.       Fifth, "the

10        principle of the loan."

11                 I am having least English knowledge, my English

12        knowledge is limited to the level I can communicate,

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

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

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

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

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

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

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

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

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

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

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

24        going to be paying extravagant amount over a period of

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

26        years.     My friends have stayed with many other banks for

27        many years and I am not here to talk about that part.         I

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

29        this I find I have been duped.

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

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

     .VCH 19/03/07    CD              13                         IYER XN
     Iyer 07/0269
1         they were?---I knew the monthly.

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

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

4         mortgage?---I had   been told that I will be paying about

5         800 and odd dollars, that's what I've been told and

6         whenever I found people going for a loan all they check

7         are only two things.   One, everybody wants to know

8         whether the amount of repayment that is being told by the

9         bank is within their capability to pay that.     Second they

10        would like to see the interest rate that is being quoted

11        by the bank is marginally better than another bank.       That

12        is how, at least the people I deal with, they have chosen

13        their lenders.

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

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

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

17        Bank of Melbourne has committed me by this sentence, that

18        if I find this is not matching with what they have quoted

19        there as per annum, which to me means simple interest,

20        they are saying to me if there is a discrepancy between

21        the two, they want me to take up the letter of offer as

22        the one that prevails over "You and your loan."     On that

23        basis I have requested Westpac to work out     simple

24        interest and pay me the difference.   I have been dealt

25        with in a very harsh, unruly manner that forced me to try

26        everywhere and then finally land up in front of you.

27        That is all I have got to say.

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

29        will ask you some questions.

30   <CROSS-EXAMINED BY MR STRONG:

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

     .VCH 19/03/07   CD              14                           IYER XN
     Iyer 07/0269
1         qualifications?     Is this a relevant question I need to

2         answer, Your Honour?

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

4         there some qualifications you have to be an

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

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

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

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

9         personnel     management.

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

11        a certified practising accountant, currently.

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

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

14   In an accounting firm?---Yes.

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

16        for me to answer your Honour?

17   HER HONOUR:     Mr Strong?

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

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

20        and other forms of calculation.

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

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

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

24        the difference between the calculation on his loan if it

25        was calculated in accordance with simple interest than

26        calculated in accordance with what he describes as

27        compound interest.

28   MR STRONG:    In order to elucidate how you work that out it will

29        be necessary to go to that document that he hasn't give

30        us yet but he will, to show the calculations, to show

31        what my case will be - to put it very shortly what he is

     .VCH 19/03/07    CD              15                       IYER XXN
     Iyer 07/0269
1         doing is not what he says he is doing at all, it is a

2         different sort of calculation.     I don't press the

3         question about his position now but he has put forward

4         some mathematical calculations.

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

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

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

8         has academic qualifications in commerce, education and

9         personnel     management.

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

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

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

13        Westpac.     I was only mentioning the circumstances.     In

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

15        Westpac on my own, but through the builder.

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

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

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

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

20        right?---Yes.

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

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

23        introduce, he took all my application, everything has

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

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

26        was when I got the call on 7 October from Tom - I forgot

27        the surname.

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

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

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

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

     .VCH 19/03/07    CD               16                        IYER XXN
     Iyer 07/0269
1         did you not?---No.

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

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

4         signing the document, yes.

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

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

7         you said you asked if they were standard documents and

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

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

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

11        say?---Yes.

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

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

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

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

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

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

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

19        right.

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

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

22        that right?---Yes.

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

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

25        7th and a copy of this booklet, the "You and your loan"

26        document away with you on the 11th, did you not?---Yes.

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

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

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

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

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

     .VCH 19/03/07   CD               17                      IYER XXN
     Iyer 07/0269
1    That is what I put to you, you didn't read it then.

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

3         "this" document.

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

5         loan" brochure.

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

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

8         read for rest of my time until September 2006.       Till that

9         time I could never understand that any of those terms you

10        have got means compounding monthly.

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

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

13        deal with a situation as an academic, as a teacher, we

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

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

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

17        even applying for the first draw-down      I read the

18        document.

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

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

21   My name is Strong?---Strong.

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

23        am on page 9.

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

25        loan"?---Correct.

26   Then "Calculation of interest."?---Yes.

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

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

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

30        definitely understand what it says in English but what I

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

     .VCH 19/03/07    CD                18                        IYER XXN
     Iyer 07/0269
1         is interest compounding monthly.   That is my claim.

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

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

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

5         total of outstanding principle and any unpaid interest

6         debited to the loan account by an annual percentage rate

7         and dividing the result by 365."

8    Yes?---It doesn't - - -

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

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

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

12        loan.

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

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

15        charged can include an amount of unpaid

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

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

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

19        it's compounding.

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

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

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

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

24        could include unpaid interest that has been debited to

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

26   Mr Iyer, isn't it there in plain English in front of

27        you?---Sorry?

28   Isn't that there in plain English in front of you?---It is not.

29   That the amount on which interest is charged could include

30        unpaid interest which has been debited to the

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

     .VCH 19/03/07   CD              19                       IYER XXN
     Iyer 07/0269
1         clear to me that interest is getting calculated on

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

3    Now when you came to do your calculations in 2006 you did

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

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

6         in 1999?---No.

7    But you do understand it now?---In 2006 yes.

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

9         be sure.

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

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

12        been overcharged represents times when the monthly

13        payment was paid a little late and so interest was

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

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

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

17        except on two occasions that they have cited, which

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

19   Perhaps I will leave that then because that is what I thought

20        the situation was but we will come back to that after

21        Mr Strong has finished asking you questions?---One

22        submission.      I never defaulted in repayment so there was

23        no reason I should end up paying compound interest.

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

25        that you are not complaining about any occasion on which

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

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

28        has got a right to charge interest on interest because

29        when any person who is a borrower defaults in their

30        payment I think the lender has got a legitimate right to

31        take interest on that unpaid amount.

     .VCH 19/03/07    CD               20                      IYER XXN
     Iyer 07/0269
1    Yes?---Here I am, I never defaulted on anything.

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

3         signed the documents and you said the pressure was from

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

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

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

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

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

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

10        the pressure I refer to.

11   Have a look at the loan offer at the    page on which you signed

12        it, which is page 7?---Yes.

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

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

15        mentioned this, I had not read before signing.

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

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

18        know - - -

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

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

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

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

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

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

25   Yes but you did read it later that day?---Yes.

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

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

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

29   Having read the documents you went ahead and authorised the

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

31        making my dream come true to have a home.

     .VCH 19/03/07   CD               21                        IYER XXN
     Iyer 07/0269
1    You say you have got your bank statements there?---Yes.

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

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

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

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

6         during the period of your loan and no doubt you cast your

7         eyes over them from time to time?---I have.

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

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

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

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

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

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

14        as whether my repayments have gone through correctly,

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

16        see.   I don't see - - -

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

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

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

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

21        statements there is the recording of the initial draw

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

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

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

25   There you see that the bank debited your account with interest

26        of $284.95?---Yes.

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

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

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

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

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

     .VCH 19/03/07   CD                22                      IYER XXN
     Iyer 07/0269
1          8 June 2000?---Yes, that's the statement number 8 there.

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

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

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

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

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

7          charging interest.     I only know that my repayments are

8          going because I trusted the bank to be doing the

9          calculation of interest appropriately, I thought they

10         would plan everything on the right time.

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

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

13         payments were not necessarily, or frequently were not,

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

15         Yes it doesn't match.

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

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

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

19         subtraction to see what is added and what is subtracted

20         in the balance.

21   You didn't?---No.

22   No.

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

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

25         $930.13."

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

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

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

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

30         balance on that day.

31   HER HONOUR:     I see yes.

     .VCH 19/03/07     CD              23                        IYER XXN
     Iyer 07/0269
1    MR STRONG:    Now, it is the case, isn't it, that whether you

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

3         showed you that when interest was charged to the account

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

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

6         got     - - -

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

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

9         didn't know at that time.

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

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

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

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

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

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

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

17        to give you a copy.

18   HER HONOUR:     Is there only one copy.

19   MR STRONG:    I think he has got more.

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

21        did the calculation - - -

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

23        Go to the Bar table and obtain the other copies?---This

24        is the total interest - - -

25   You will have a chance to explain the documents. All I want to

26        do is have them distributed at the moment.

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

28        there?

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

30        done?---Okay, I have printed with insufficient space on

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

     .VCH 19/03/07    CD               24                          IYER XXN
     Iyer 07/0269
1         number thing, but the relevant numbers are seen in column

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

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

4         statements.      I have just copied exactly whatever you

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

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

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

8         them     and have drawn number 7 in column F for $20,235.80

9         as the total interest the bank had debited in my account.

10        I have gone to column G to include the interest

11        fluctuation, the interest fluctuation that has been - the

12        market fluctuation advice now and then by the bank. Again

13        I am sorry a couple of the dates are not very clear there

14        but the rest of the dates are clear and the percentage

15        that has been advised is clear.      In column A I have

16        calculated the outstanding money that has been lent me.

17        In other words the analysis here I have done is actual

18        cash that has been lent by Westpac to me.      Out of the

19        cash that is lent to me I have refunded on different

20        dates, you can see in column B I have repaid certain

21        amount of money.     I consider my money brings the same 100

22        cents per dollar as Westpac money would bring so I was

23        offsetting the money that has been lent to me with the

24        money that I repaid to Westpac.      On that basis I have

25        derived the outstanding balance at different dates

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

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

28        which the bank has lent to me, to the date on which I

29        made repayment I have calculated a number of days because

30        the bank calculates interest on daily balances.      So I

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

     .VCH 19/03/07    CD               25                      IYER XXN
     Iyer 07/0269
1         K I have calculated the interest.       You can see the first

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

3         Westpac has calculated as $284.96 because the

4         characteristic of simple and compound interest is -

5         simple interest and compound interest, in the very first

6         one they both bring the same result.       It's only from the

7         second month     onwards that interest will be less if it is

8         simple interest.    That's why I've gone ahead and

9         projected for the entire period on the same concept and

10        the total that you see on column K, row number 7, column

11        K, shows I should have paid $19,233.91.       That's what I

12        should have paid but what the bank had debited is

13        $20,235.80.     It is - with regret I have to say that in

14        spite of me bringing this to VCAT, when the bank was

15        sent the discrepancy I don't know why they have shown

16        that I have paid $1,500 when I have not paid.       I am

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

18        coming to the court Westpac has shown negligence in terms

19        of doing the calculation and bringing it to tell the

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

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

22        will take only $1,001.89.

23   Now, could you just clarify this for me?---Yes.

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

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

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

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

28        100 cents and it is a legal tender and I rely that it has

29        got the same properties     as the money when it comes from

30        Westpac.

31   Can I put this another way.    Your calculations in column I

     .VCH 19/03/07   CD               26                        IYER XXN
     Iyer 07/0269
1         reduce the amount outstanding in each case by the

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

3         right?---That's right.

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

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

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

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

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

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

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

11        you, from your bank, it has got    the same properties as

12        the legal tender when it is going from me to your bank.

13        So it has to be offset with each other and that's how the

14        interest would be    calculated.

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

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

17   Represents the figure immediately above it less the

18        $285.13?---That is correct.

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

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

21        deposit entry.

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

23        interest is paid on this loan until the final

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

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

26        only that portion.

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

28        the consequence of your method of calculation that there

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

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

31        people have got resource enough to identify what is the

     .VCH 19/03/07   CD              27                        IYER XXN
     Iyer 07/0269
1         reason why there     is a difference.    All I can tell you is

2         what I have done in the plain English manner that I

3         believe the money that I have received has got the same

4         legal properties as the money I returned back to Westpac.

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

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

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

8         money lent minus the money that I repaid,       on that I

9         calculated the interest.     On the balance I calculated the

10        interest, assuming the deposit that I made back has the

11        same interest claim as when they lent it to me.

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

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

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

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

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

17        telephone expenses, or whatever, they provide the service

18        first and they take the payment - - -

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

20        spreadsheet of your calculations, there is no interest

21        paid to the bank before the date on which the loan is

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

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

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

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

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

27        payable on this spreadsheet until the end of the

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

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

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

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

     .VCH 19/03/07    CD              28                        IYER XXN
     Iyer 07/0269
1         every month?---No, I have opted for a principle and

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

3         for interest only option.

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

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

6         page 1?---Yes.     It says "After the date you first draw

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

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

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

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

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

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

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

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

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

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

17        and interest loan,     interest - - -

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

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

20        billing statement is written on the date 14 days before

21        the payment due date.     It will be interest for the period

22        from and including the previous payment due date and

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

24        billing statement from the date your loan account is open

25        to and including calculation date, the estimated interest

26        for the period" - - -

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

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

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

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

31        able to understand what it says.

     .VCH 19/03/07    CD              29                       IYER XXN
     Iyer 07/0269
1    It is very convenient, isn't it, that whenever a difficult

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

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

4         you are calling me a liar.

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

6         experience wouldn't have any difficulty in understanding

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

8    HER HONOUR:     Mr Iyer, all I ask you to do is listen    to the

9         questions and answer them.       If you can answer yes or no

10        that is the best way to do it.      If you need to explain

11        then wait until the question is finished before you

12        explain.

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

14        again.     I am suggesting that a person with your

15        qualifications in accountancy and your experience, and in

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

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

18        person of your experience and qualifications would have

19        no difficulty in understanding the concepts that are

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

21        my career from being a teacher to an accountant for the

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

23        months old as an accountant.      Before that I was not an

24        accountant, I was only a teacher.

25   A teacher of what?---Teacher of computing and teacher       of

26        Australian law and teacher of accounting.

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

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

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

30        reducing principle but payable at the end of the loan

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

     .VCH 19/03/07    CD              30                         IYER XXN
     Iyer 07/0269
1    That is what you have been taught.   So, you would deny would

2         you that the idea of simple interest would include

3         interest which was calculated at the same rate but was

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

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

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

7         learned that.

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

9         of payments of principle interest payable monthly and

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

11        repeat that please?

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

13        principle?---Yes.

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

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

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

17        won't it?---No.

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

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

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

21        On that basis the interest calculated on a monthly basis,

22        when a person has been paying the money back, calculated

23        according to the end of the month balance at the end of

24        the year will be far different to interest if you

25        calculate straight on the principle that is lent for one

26        year.

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

28        borrower and the lender, that interest shall be payable

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

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

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

     .VCH 19/03/07   CD              31                       IYER XXN
     Iyer 07/0269
1         told - I repeat the point again, if that was the case I

2         would have chosen the interest only option which has been

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

4         only option because I endeavoured to pay the principle

5         than paying the interest first.

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

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

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

9         that offer at all.

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

11        principle and interest repayment.

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

13        charged you in September 2006.     Now that was four years

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

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

16        you to choose to do that?---Is this question at all

17        relevant for me to answer?

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

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

20        Unless I interrupt Mr Strong you can presume that his

21        questions are relevant.

22   MR STRONG:    So what happened that made you come to do that

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

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

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

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

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

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

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

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

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

     .VCH 19/03/07    CD              32                       IYER XXN
     Iyer 07/0269
1         point and end point in that company loan, so I took the

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

3         how the interest is affecting my loan balance there.

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

5         calculated if my assumption of what I understood from the

6         document as simple interest is correct.     I went through

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

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

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

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

11        51 per cent more than what I was supposed to be paying.

12        That's the starting point.

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

14        1999 right through to September 2006 you thought that the

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

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

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

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

19        come true.      So I trusted them very much and I was hurt

20        very much when I found something opposite.

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

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

23        way in which Westpac was going to calculate the

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

25        not comprehend, I cannot understand - - -

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

27        you now understand?---Yes.

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

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

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

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

     .VCH 19/03/07   CD                33                      IYER XXN
     Iyer 07/0269
1         say why they took it?

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

3         documents that you signed and took away with you on

4         11 October accurately described the way in which Westpac

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

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

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

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

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

10        you are talking about on page 2.

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

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

13        interest in a compounding way than in simple interest.

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

15        is different from the way in which Westpac has actually

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

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

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

19   MR STRONG:    I have no further questions.

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

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

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

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

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

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

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

27        really cannot comprehend what that whole paragraph means

28        there.

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

30        have the ability to comprehend that it means compounding.

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

     .VCH 19/03/07    CD              34                        IYER XXN
     Iyer 07/0269
1         anything, but what is it in those paragraphs that you

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

3         will calculate the first billing statement and the

4         calculation date. There is no calendar that has been

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

6         estimated interest that has been told to me as estimated

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

8         understand what that ongoing amounts means.

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

10        of the things that you have been asked by

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

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

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

14        the document not clear for me to understand in the

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

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

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

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

19        time to waste your time or my time or their time.

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

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

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

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

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

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

26        summary.

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

28        2.

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

30        amounts?---On page 3.

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

     .VCH 19/03/07    CD             35                       IYER XXN
     Iyer 07/0269
1         amounts?---I can probably point out to you that on page

2         3, first the sentence up to 51.314 per cent, up to that

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

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

5         $1,001.89?---No, $20,331.34 is the total interest I paid.

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

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

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

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

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

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

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

13        with your wife?---Yes.

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

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

16        behalf?---Yes.

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

18        $553.60.   How have you worked that out?---That's what I

19        pay to VCAT.

20   To?---VCAT, the Tribunal.

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

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

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

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

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

26        loan I have gone through so many different difficulties

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

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

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

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

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

     .VCH 19/03/07   CD              36                        IYER XXN
     Iyer 07/0269
1         even $230 for water when I had to pay, I had difficulty

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

3         error the bank has been committing and has not been

4         disclosed and the amount of skill that is required even

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

6         and they cannot understand that the bank is charging

7         compound interest.

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

9         $1000-odd more over that period of two years?---Correct.

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

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

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

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

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

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

16        hidden message in their contract of compound interest.

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

18        are having false, misleading and deceptive conduct.

19   Is there anything else you want to say to me as to how that

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

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

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

23        of impact to the society and everything added together,

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

25        attention of the court I believe I am worthy of making it

26        clear.

27   HER HONOUR:     Is there anything arising out of that Mr Strong?

28   MR STRONG:    No your Honour, but in answer to an earlier

29        question of your Honour's he said he was still pursuing

30        all the matters on page 2 of his 1 March document.       I

31        didn't take him to item 2 of the claim because he didn't

     .VCH 19/03/07    CD              37                         IYER XXN
     Iyer 07/0269
1         give any evidence about compliance with the

2         mandatory - - -

3    HER HONOUR:     This is a case about Mr Iyer and what he has lost,

4         it is not a case about the general community or anyone

5         else in the community who may have entered into some

6         contracts with Westpac of various kinds so I would

7         perhaps indicate that I am not going to see as relevant

8         any evidence about non-compliance with mandatory

9         comparison rate legislation unless it impacts on this

10        case.

11   There are no issues on page 2 that you want to give evidence

12        about?---Yes, even now when I want to buy another

13        property I want to look at the interest rate quoted by a

14        different bank and the mandatory comparison rate that is

15        quoted still doesn't incorporate the cost of the loan

16        which is including the compounding rate so it is still

17        misleading a person to go ahead and sign a loan agreement

18        so that is what I brought under section 9 of the

19        statutory Act.

20   HER HONOUR:     Yes?---It has got a likely potential to mislead a

21        person still.

22   MR STRONG:    Mr Iyer, do you base the assertion that the current

23        advertisement of mandatory comparison rates doesn't

24        reflect the true cost of the loan on calculations of the

25        kind that you did for your own loan?---Yes, it doesn't

26        reflect correctly the rate.

27   So those are the calculations in which you have done sample

28        loans of different amounts and different periods and you

29        have worked out the difference between the rate quoted by

30        the bank and the true rate if the interest was all

31        postponed until the end of the loan period?---Can you

     .VCH 19/03/07    CD              38                       IYER XXN
     Iyer 07/0269
1         repeat that please, my concentration has - - -

2    You have done calculations, like the one that we discussed

3         earlier, for different amounts and different

4         figures?---Yes.

5    Different loans?---Yes.

6    Based on the proposition that the interest is not to be payable

7         until the end of the loan?---That's not the proposition I

8         had.    I had the assumption that my money has got the same

9         properties as your money has got and on that basis I

10        offset the money I paid in terms of the money that you

11        lent.

12   Yes and that means that all the money you paid should be taken

13        off what you owe?---Yes.

14   And then when you repay the loan you can repay the interest at

15        that time?---Yes.

16   That's right.   Now can you have a look please at this document.

17        I have given you an extract from the Consumer Credit

18        Regulations and it is Regulation 33F. Do you see

19        that?---Yes.

20   Could you have a look at page 39 starting with the letter 3,

21        "the comparison rate is given by the following

22        formula"?---Yes.

23   Do you see the formula there?---Yes.

24   Do you see the way in which the elements of that formula are

25        defined?---Do you think I understand any of the formula?

26   I am asking you first, do you see that NRJTAJ, all that and so

27        on?---Yes.

28   When did you first see that formula?---By the courtesy of

29        Westpac last week on 13 March, that's the first time I

30        have got this.    In fact in my discussion with Tim Goss of

31        Westpac on 16 November or whenever I have been informed I

     .VCH 19/03/07   CD              39                      IYER XXN
     Iyer 07/0269
1         have requested him to send only one line of information

2         something like this saying that the bank is charging

3         compound interest as per some legislation, that is all I

4         asked.

5    Never mind your conversation with Mr Goss.      You have told Her

6         Honour that the first time you saw this formula was last

7         week, is that right?---On 13 March yes.

8    So none of the calculations that you made for the purposes of

9         your assertion that the bank isn't complying with the

10        mandatory comparison rate legislation were made using

11        this formula?---It is still not plain because the

12        legislation says compounding frequency is supposed to be

13        disclosed and I don't see any of your advertisements

14        disclosing compounding frequency as compounding monthly,

15        compounding quarterly, compounding half yearly or

16        compounding annually.    Nothing is being disclosed.

17   I am sorry Mr Iyer, what are you referring to?---33F, ss.2

18        "Comparison rate must be calculated as a nominal rate per

19        annum together with the compounding frequency in

20        accordance with the section."       The compounding frequency

21        when your frequency is every fortnight, if you compound

22        every fortnight the interest rate is different. If you

23        compound every month the interest rate is different, if

24        you compound every quarter, different, half-yearly

25        different, annually different, in spite of the fact the

26        annual rate you quote is totally different.

27   Yes, now Mr Iyer, you have put forward to the Tribunal the

28        proposition that a particular document that you extracted

29        from Westpac's website - do you know the document to

30        which I refer?---Yes, I think A6 you are talking about.

31   MR STRONG:    It is A6 in your bundle.    Does your Honour have

     .VCH 19/03/07   CD              40                         IYER XXN
     Iyer 07/0269
1           that?

2    HER HONOUR:     Yes, I think I do yes.

3    MR STRONG:     It is a two page document, one is called simple

4           interest compound interest conversion table and the other

5           is a printout from a page on the website?

6    HER HONOUR:     Yes.

7    MR STRONG:     Now Mr Iyer, you say that on your calculations the

8           comparison rates shown on that website are wrong?---Yes.

9    Yes.   But your calculations were not made using the formula in

10          these regulations, were they?---But using the - using the

11          information - - -

12   Never mind about that, I am asking you a question.      Did you

13          make your calculations using the formula in the

14          regulations?---That part I cannot understand.

15   You can't understand it.     So you have no idea whether Westpac's

16          disclosures on the website do or do not comply with that

17          formula, have you?---I know it is not compliant with the

18          condition.

19   Never mind that, I am asking you about the formula?---I'm not

20          sure.

21   You don't know, do you?---No.

22   And you couldn't know because you don't understand the

23          formula?---No.

24   MR STRONG:     No further questions.

25   <(THE WITNESS WITHDREW)

26   HER HONOUR:     Mr Iyer, is there any other evidence.

27   MR IYER:   I have a request that if VCAT can seek expert opinion

28          on the Excel projection I have done I am prepared to bear

29          the cost for the Excel projections to show the compound,

30          the alleged situation between compound and simple

31          interest because simple interest is quoted and applied.

     .VCH 19/03/07    CD              41                        IYER XXN
     Iyer 07/0269
1         It has got a certain character and if it is compound

2         interest as long as the term of the loan the actual

3         effective rate is much higher and if the frequency of

4         compounding is very quick the interest rate that results

5         is very high. For a lower term, if we take a loan for

6         five years, it is beneficial to take a loan for five

7         years at a higher rate that is quoted by the bank,

8         compounding monthly, than taking a loan for 25 years,

9         interest rate quoted lower but effective interest rate

10        comes to, compounding comes to the highest rate of

11        interest they are paying.    Since I have derived this

12        table based on whatever is there, as in A6, I have

13        provided evidence of one of the authors of a textbook

14        here who says in theory that is what is the impact.       In

15        Excel I have proved the theory is correct.

16   HER HONOUR:   But Mr Iyer, what I need to decide is whether

17        Westpac owes you any money by reason of the contract that

18        you took out with them.   You say you have done

19        calculations and the calculations that you have provided

20        me with are calculations which, if the way you calculate

21        the loan is correct, there is $1,001 difference between

22        what Westpac has charged you and what you say you

23        owe?---Yes.

24   Now there is no value in an expert coming along because you

25        have done this calculation yourself.    The question is

26        whether or not you should be entitled to make this

27        calculation given that the written documents you have

28        signed with Westpac refer to the calculation being made

29        in another way.   There is no expert evidence that is

30        going to help me determine that.    Are there any other

31        matters you want to put or any other evidence you want to

     .VCH 19/03/07   CD               42                    DISCUSSION
     Iyer 07/0269
1         bring to my attention?

2    MR IYER:   Not that I can think of, offhand.

3    HER HONOUR:    Mr Strong.

4    MR STRONG:    Your Honour Mr Iyer bases his claim on the

5         proposition that at the time that he entered into his

6         loan contract with Westpac he was under a misapprehension

7         as to the way in which Westpac would calculate interest

8         and that he believed, contrary to the terms of the

9         document, that interest on his loan would be payable

10        calculated on the declining balance of principle to which

11        all his monthly payments would be applied, and payable

12        once he had paid off the principle.

13                 There is nothing in Westpac's documents which would

14        have induced such a belief in him. The only thing he

15        could say is that there was an omission from Westpac's

16        documents such that he should have been but wasn't

17        disabused of this particular notion.

18                 Our first submission is that the loan offer letter

19        and the "You and Your Loan" terms and conditions booklet

20        do make it abundantly clear that interest on the loan

21        will be charged on daily balances and debited to the

22        account monthly and that payments to the account would be

23        applied to any unpaid interest before the principle is

24        reduced.     The question is whether if Mr Iyer was not

25        disabused of his different idea by these documents,

26        whether Westpac is to be held responsible for that,

27        because it could only be if Westpac was responsible for

28        that, that there could be any suggestion of either

29        misleading or deceptive or unconscionable conduct.

30                 Mr Iyer says that he read these documents on the day

31        that he got them, even if not before he signed them, and

     .VCH 19/03/07    CD              43            ADDRESS (MR STRONG)
     Iyer 07/0269
1         he acknowledged as was pointed out in the loan offer

2         letter at page 7 that he could have withdrawn from the

3         loan contract at any time up to the first draw down which

4         took place 11 days later.    He acknowledged that he was

5         happy with the documents and wanted to go ahead but he

6         says here that he didn't understand them.    In my

7         submission your Honour should have considerable

8         reservations in accepting that his level of understanding

9         or lack of it was as he has said today.    It seems quite

10        extraordinary that a person who had, up to three months

11        before he had taken the loan, been a person who was

12        teaching subjects such as law and accounting and business

13        management I think he said?

14   HER HONOUR:    Personal management.

15   MR STRONG:    Personal management, would have the difficulties

16        understanding the quite plain English, even if technical,

17        language of these documents.     But even if it is the case

18        that your Honour accepts that he didn't understand these

19        documents and not understanding them, nevertheless,

20        thought that they were fine then in my submission your

21        Honour could not find that Westpac was guilty of any

22        misleading or deceptive or unconscionable conduct in

23        preparing these documents in the way that it has, putting

24        forward the explanations that it did and expecting that a

25        person who did not understand them when they read them

26        would either get advice or raise the question, but

27        otherwise expecting that as best that could be done the

28        matter has been plainly and clearly explained to the

29        borrower.

30                 It is quite true, as the bank officer said when the

31        documents were signed, that these were standard terms.

     .VCH 19/03/07    CD              44           ADDRESS (MR STRONG)
     Iyer 07/0269
1         Mr Iyer accepted them as such, he read them after he

2         signed them and he could have come back and complained or

3         said he didn't understand them.     He did none of those

4         things and the bank, in my submission, is not to be held

5         responsible if you accept that he didn't.

6               The second submission is that Mr Iyer has not even

7         demonstrated that the $1,000 is actually a loss.     What he

8         said was that if he had known about the way in which the

9         bank would calculate the interest he wouldn't have gone

10        ahead with this loan, he would have postponed purchasing

11        the property and building a house and saved up a bigger

12        deposit.    Well, he has to show that he is worse off for

13        having gone ahead and bought the property in 1999 and

14        sold it in 2002 compared with whatever else he was going

15        to do.     It is not a case where he took the loan on the

16        terms offered by Westpac where he has given evidence that

17        he could have got a loan on the terms that he likes from

18        somewhere else so we submit that in terms of the High

19        Court's decision in Marks v GIO which deals with the

20        distinction between actual and expectation losses, and to

21        which attention we drew to Mr Iyer in a letter last week,

22        he has not established even that the $1,000 is a loss.

23              His claim for costs will fall to be decided if and

24        when we have an argument whereby he applies for his

25        costs.     His claim for exemplary damages can be answered

26        in two short points.     The first of them is that this is a

27        proceeding in which he is seeking damages pursuant to

28        section 159 of the Fair Trading Act.     Section 159 is the

29        provision, Your Honour, which allows a person who has

30        suffered loss, injury or damage because of a

31        contravention of a provision of the Act to recover the

     .VCH 19/03/07    CD              45           ADDRESS (MR STRONG)
     Iyer 07/0269
1         amount of that loss or damage and they can do so in a

2         court or in this Tribunal.       Section 159 does not

3         authorise exemplary damages.

4                  Can I hand up to your Honour and provide to Mr Iyer

5         some authorities.     I don't want to go in detail to the

6         authorities but I just want to point to - No. 6 is the

7         decision of Justice Wilcox in the Federal Court in Nixon

8         v Phillip Morris Australia and at paragraphs 99 to 103

9         His Honour deals with a submission that exemplary damages

10        are not recoverable under sections 82 or 87 of the Trade

11        Practices Act.     Those two sections are the equivalent of

12        159 and 158 of the Fair Trading Act.       At 103 his Honour

13        concludes, "I accept it may be possible in an appropriate

14        case to recover aggravated damages as loss or damage

15        within the meaning of section 82 or 87, however it seems

16        to me clear that exemplary damages cannot fall into that

17        category.     I am of the opinion that in the present case

18        it is not open to any of the applicants or group members

19        to recover exemplary damages in relation to any

20        contravention of section 52 that they may prove."

21              Then at tab 7 there is the decision of the New South

22        Wales Court of Appeal in a case called Harris v Digital

23        Pulse.     It is a very long decision, we probably didn't

24        need to copy it all.      This is a case in which the Court

25        of Appeal delivered a unanimous judgement rejecting the

26        proposition that - well a majority judgement perhaps -

27        rejecting the proposition that there could be exemplary

28        damages for a breach of fiduciary duty and at page 334 of

29        the report at paragraph 186 it says, "The Trade Practices

30        Act provides no analogy because punitive remedies are

31        excluded by the terms of section 82" and they cite the

     .VCH 19/03/07    CD              46             ADDRESS (MR STRONG)
     Iyer 07/0269
1         amount of the loss and damage and, "Section 87 compensate

2         for or prevent or reduce loss and damage" and they cite

3         Nixon v Phillip Morris Australia as authority for that.

4         That is, I think, Justice Heydon speaking in that

5         particular - no, President Mason.

6               The language of sections 159 and 158 is relevantly

7         similar to the Trade Practices Act.     Section 159 refers

8         to recovering the amount of the loss or damage.      Section

9         158 refers to an order that the defendant pay the amount

10        of any loss or damage suffered by the injured person.

11        That is sub-paragraph 2(e).

12              The second point to make is that in my submission

13        section 108 of the Fair Trading Act which gives the

14        Tribunal the power to hear and determine a consumer and

15        trader dispute doesn't have the effect that the Tribunal

16        is in a different position to the court and can award

17        exemplary damages.    It is true that exemplary damages are

18        referred to specifically in 2B(2), however in my

19        submission sub-s.(2) is a series of powers in aid of the

20        jurisdiction conferred by sub-s.(1) and the Tribunal is

21        to hear and determine a consumer and trader dispute under

22        sub-s.(1) according to law.     It is only where the

23        underlying rights, legal rights and liabilities of the

24        parties give rise to a right to a right to exemplary

25        damages that the Tribunal's power to award them is,

26        effectively, enlivened.

27              There is some debate amongst members of the

28        Tribunal, Your Honour, about to what extent the Tribunal

29        is found to herein determine its disputes according to

30        the law.   I have given your Honour a couple of

31        references.     There is a decision of the learned

     .VCH 19/03/07   CD              47            ADDRESS (MR STRONG)
     Iyer 07/0269
1         President, Justice Morris, at tab 13 in which he suggests

2         that perhaps the Tribunal is not required to hear and

3         determine disputes according to law.    That is in the

4         second volume of authorities.    The relevant passage is

5         from 33 to 41 and his Honour at 41 says, "Sections 108

6         and 109 seek to overlay the common law and actions based

7         on contravention of statute with substantive principles

8         based on fairness pursuant to which certain disputes may

9         be resolved."    In my submission his Honour intends by

10        that to say that the Tribunal's jurisdiction under

11        section 108 is otherwise than to hear and determine

12        disputes according to law and we respectfully disagree

13        with him.

14              It is true that 109 explicitly gives the Tribunal

15        power similar to section 158 to adjust legal rights by

16        varying a contract for example but the indications    we

17        would suggest are that when you look at the definition of

18        consumer and trader dispute at section 107(2) it refers

19        to disputes or claims in negligence, nuisance or

20        trespass, for example relating to the supply of goods, we

21        are talking legal terms of art there, and courses of

22        action that are known to the law.

23              The powers that are exercised under section 109 are

24        exercisable in the course of determining a consumer

25        dispute or a trader trader dispute which are subsets of

26        consumer trading disputes, and there is specific power to

27        vary contracts and there is power to make any order it

28        considers fair but in our submission whatever limits

29        there are on that power it has got to be done in the

30        context of hearing and determining the dispute according

31        to law and possibly, if fairness calls for it, adjustment

     .VCH 19/03/07    CD             48           ADDRESS (MR STRONG)
     Iyer 07/0269
1         of legal rights and perhaps that could be done.

2    HER HONOUR:    So if it is a statutory remedy you say that

3         exemplary damages won't apply, it will only apply if it

4         is a claim in negligence, nuisance, trespass in which

5         there is a right under the common law for exemplary

6         damages?

7    MR STRONG:    Yes.

8    HER HONOUR:   There is no right, you say, to exemplary damages

9         if it is a statutory breach?

10   MR STRONG:    Well not this particular statutory breach because

11        the language of it is confined to recovering actual loss

12        and damage and the definition of exemplary damages is

13        that it is not actual loss, it is an award made to punish

14        the defendant.

15   HER HONOUR:    Of course it would be open to parliament to

16        provide legislation which would include the right to

17        claim exemplary damages as part of a statutory breach?

18   MR STRONG:    Yes.

19   HER HONOUR:    But given the authorities you have referred me to

20        and given that there is no right in the sections under

21        which this claim is made for exemplary damages, you say

22        that 108(2)B(ii) must be confined to the claims in

23        negligence, nuisance or trespass that are referred to in

24        paragraph - - -

25   MR STRONG:    Yes, or possibly other common law claims where

26        there is - like defamation.     Perhaps it has been

27        abolished now, defamation, but if it hadn't, maybe that.

28   HER HONOUR:    Yes.

29   MR STRONG:    But wherever a court could award exemplary damages

30        then say too could the Tribunal, but the Tribunal hasn't

31        been liberated from the law to the extent it can go and

     .VCH 19/03/07    CD             49            ADDRESS (MR STRONG)
     Iyer 07/0269
1         create a new classes of case in which exemplary damages

2         can be awarded.

3               The last point we make about exemplary damages is

4         that Mr Iyer has given no evidence at all which would

5         even remotely begin to justify any award of exemplary

6         damages, let alone the amount he is claiming.

7               We have provided Your Honour with two cases on

8         exemplary damages, both cited in the High Court of

9         Australia.      They are the first two cases in volume 2 of

10        the authorities.     The first is Uren v John Fairfax & Sons

11        and in that case the court declined to follow a decision

12        of the House of Lords which confined exemplary damages to

13        certain categories.      They re-stated the law in cases in

14        which exemplary damages could be awarded and the accurate

15        flavour of it is found, for example, in the judgement of

16        Justice Taylor at 129 at the bottom of the page.     It says

17        that the law relating to exemplary damages both in

18        England and in this country was that "Damages of that

19        character might be awarded if it appeared that, in the

20        commission of the wrong complained of, the conduct of the

21        defendant had been high handed, insolent, vindictive or

22        malicious or had in some other way exhibited a

23        contumelious disregard of the plaintiff's rights."     That

24        expression that I have just said, "contumelious disregard

25        of the plaintiff's rights" is adopted as a good or

26        reasonable summary by the other members of the court.

27              In the subsequent decision which is at tab 9 of the

28        authorities, Lamb v Kotongo, the High Court again had

29        occasion to consider the availability of exemplary

30        damages and in a joint judgement the court held that - if

31        one goes to the discussion starting at page 7 of the

     .VCH 19/03/07   CD                50           ADDRESS (MR STRONG)
     Iyer 07/0269
1         report, at the bottom of page 7 the court adopted and

2         confirmed the position that was adopted in Uren v John

3         Fairfax & Sons.     At the top of page 8, "Notwithstanding

4         their Lordship's confined their remarks (indistinct) what

5         was said by this court in Uren v John Fairfax not so

6         restricted are the well settled judicial approach in

7         Australia that extends exemplary damages to a wider range

8         of torts."

9                  Then they cite with approval passages above on page

10        8, Mayne and McGregor on damages.     "Such damages are

11        called punitive, vindictive, exemplary and even

12        retributory damages.     They can apply only where the

13        conduct of the defendant merits punishment which is only

14        considered to be so where his conduct is wanton as we

15        have discussed as fraud, malice, violence, cruelty,

16        insolence and the like as it is sometimes put where he

17        acts in contumelious disregard of the plaintiff's

18        rights."

19                 Now that is the law of the country and there is no

20        evidence of anything of the kind here.     All that could be

21        said is if your Honour though we had deceived Mr Iyer in

22        any way, is that we failed to appreciate that he didn't

23        understand our documents.

24   HER HONOUR:    Thank you.

25   MR STRONG:    Mr Iyer has said in his claim document that he

26        wants an injunction restraining Westpac or ordering

27        Westpac to cease its lending activities in Victoria.

28   HER HONOUR:    That hasn't been mentioned today.   I don't think

29        it is necessary for you to go into that matter unless an

30        application is made.

31   MR STRONG:    In that case there are no further submissions.

     .VCH 19/03/07    CD              51           ADDRESS (MR STRONG)
     Iyer 07/0269
1   HER HONOUR:   I will adjourn the court now until 10.30 tomorrow

2        morning.   The Tribunal list might say 10 o'clock but it

3        will be 10.30 tomorrow morning.

4   ADJOURNED UNTIL TUESDAY 20 MARCH 2007




    .VCH 19/03/07   CD             52            ADDRESS (MR STRONG)
    Iyer 07/0269

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:46
posted:7/14/2011
language:English
pages:53