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Hennah v Westpac Banking Corporation [2022] NZHC 1526 (30 June 2022)

Last Updated: 18 August 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

This judgment was delivered by Associate Judge Andrew on 30 June 2022 at 3.00 pm

pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar Date..........................

HENNAH & ORS v WESTPAC BANKING CORPORATION & OR [2022] NZHC 1526 [30 June 2022]

Introduction

• [1] Mr and Mrs Hennah, in their capacity as trustees and business partners, were part of the Hennah group. The Hennah group traded in farming and rural commercial activities in Hawkes Bay.

• [2] The Hennahs, in those dual capacities, sue the two defendant Westpac entities¹ for alleged misleading and deceptive conduct in the course of selling and managing the financial products known as interest rate swaps.² Entities within the Hennah group had entered into the swaps with Westpac in 2008.

• [3] The plaintiffs claim that the first defendant, Westpac Banking Corporation,³ provided financial advice to them as part of the Hennah group. It is said that the scope of the duties owed by WBC is determined by the provisions of the Securities Markets Act 1998 and the Financial Advisers Act 2008.

• [4] In 2015, the Commerce Commission concluded a settlement with Westpac in relation to the marketing, promotion and sale of interest rate swaps to rural customers between 2005 and 2012.

• [5] There are three interlocutory applications for determination:

(a) Application by the defendants for security for costs;

(b) Application by the defendants for further particulars;

(c) Costs in relation to Mr Hennah’s discontinuance as second plaintiff in his personal capacity.

¹ Westpac.

2. An interest rate swap is a financial derivative which is used by borrowers to hedge the interest rate risk payable on a loan. See Bushline Trustees Ltd v ANZ Bank New Zealand Ltd [2017] NZHC 2520 at [45]–[51]. Edwards J noted that the swap transaction is separate and distinct from the loan transaction. But the term “swaps” is sometimes used to refer to the swap and loan transaction combined.

³ WBC.

Factual background

• [6] The proceedings were issued on 22 December 2020. Mr Hennah was the second plaintiff at that time.

• [7] The proceedings arise out of the entry by the Beauly Trust into loans in April 2008 with Westpac Bank NZ Ltd⁴ and a related interest rate swap arrangement with WBC in (initially) May 2008 and again (by way of restructure) in November 2008.

• [8] The Hennah Partnership was not a party to any of these transactions, but as noted, claims to have been part of the Hennah group farm operation. The partnership says that it owned livestock and provided feed and winter grazing.

• [9] G M Hennah Ltd (the farm management company) also said to be part of the Hennah group, was another (less substantial) borrower. It is not a plaintiff. It was struck off the Register of Companies in 2014. An application to this Court by Mr Hennah that it be reinstated was rejected by Davison J in 2020.⁵

• [10] Mr Hennah is a person common to the Beauly Trust, Hennah Partnership and G M Hennah Ltd. He was adjudicated bankrupt in March 2013 and discharged from bankruptcy in April 2016.

• [11] The defendants accept that the swap arrangements at issue did not “admittedly” work well for the Beauly Trust. A few months after the November 2008 restructure, there was a sharp drop in wholesale interest rates. This led to an unexpectedly large divergence between the swap rate (which Beauly Trust was paying and had fixed for a three-year term) and the rate that WBC was paying. In the period mid-2009 to early 2011, therefore, the Beauly Trust paid more interest on its borrowing than it might otherwise have, had it been on a simple fixed/floating loan type arrangement (i.e. with no swaps).

⁴ WNZL.

5. Hennah v Registrar of Companies [2020] NZHC 1232. That judgment contains helpful analysis of the broader context to the litigation.

• [12] The defendants also accept that there were features of the swaps which worked against Beauly Trust. Those included terms which (with break costs) made it too expensive to cancel and there was an ability by WBC to charge a higher risk margin as the lending position deteriorated.

• [13] Westpac says it was required to extend more credit and eventually receivers were appointed for G M Hennah Ltd. After a farm sale in 2012 by the receivers, Westpac says it recorded a loss on the borrowing of circa $7.35m.

• [14] The Commerce Commission investigation of Westpac and other banks in the period 2013 to 2015 looked into allegations of mis-selling of interest rate swap products. The public settlement between Westpac and the Commerce Commission involved an acceptance by Westpac that it had engaged in certain conduct that was likely to mislead or deceive some customers by representing that their swap arrangements fixed the all-up cost of their borrowing, when in fact the margins on the loans underpinning their swaps could increase. Westpac did not accept that this had actually caused losses for any of its customers.

• [15] Westpac further says that it was agreed between it and the Commerce Commission that the Beauly Trust (and G M Hennah Ltd) were not entitled to any payment because Westpac had already written-off a significantly greater amount of

$7,348,881, as compared to the reasonable approximation of the additional borrowing costs to the Beauly Trust of $394,308.

• [16] The second amended statement of claim of October 2021 contains three causes of action: unconscionable conduct and bargaining amounting to equitable fraud, deceptive and misleading conduct impacting upon the Partnership, and breach of fiduciary duty.

Relevant legal principles – security for costs

• [17] Rule 5.45 of the High Court Rules 2016⁶ provides:

⁶ HCR.

5.45 Order for security of costs

(1) Subclause (2) applies if a Judge is satisfied, on the application of a defendant, –

(a) that a plaintiff –

(i) is resident out of New Zealand; or

(ii) is a corporation incorporated outside New Zealand; or

(iii) is a subsidiary (within the meaning of section 5 of the

Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b) that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

(2) A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3) An order under subclause (2) –

(a) requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient –

(i) by paying that sum into court; or

(ii) by giving, to the satisfaction of the Judge or the Registrar, security for that sum; and

(b) may stay the proceeding until the sum is paid or the security given.

...

• [18] Once the threshold in r 5.45(1) is met, whether to grant security and if so, the quantum, are discretionary matters. A broad overall assessment, having regard to the situation of the parties and the nature of the proceeding is required.⁷ The discretion is not to be fettered by “constructing principles” from the facts of previous cases.⁸

• [19] The general approach is to balance two competing interests – “the defendant’s interest in being protected from a barren costs order and the plaintiff’s right of access to the Court.”⁹

⁷ Hamilton v Papakura District Council [1997] NZHC 1109; (1997) 11 PRNZ 333 (HC) at 335.

⁸ A S McLachlan Ltd v MEL Network Ltd [2002] NZCA 215; (2002) 16 PRNZ 747 (CA) at [13] and [14].

⁹ Clear White Investments Ltd v Otis Trustee Ltd [2016] NZHC 2837 at [4].

• [20] It is a factor in favour of ordering security where a prima facie case can be established that the plaintiff’s claim is unmeritorious. A security is more likely to be ordered, the less apparently meritorious a case is.¹⁰
• [21] In Highgate on Broadway Ltd v Devine, Kós J held, “access to justice is an essential human right.” His Honour noted:¹¹

The cost of exercising that right is the payment of costs in the event of failure. The right of a successful defendant to costs in that event is arguably subordinate to the plaintiff’s right to be heard. Strong social policy considerations favour the use of Courts as an accessible forum for the resolution of disputes and grievances of almost all kinds.

Analysis and decision – security for costs

• [22] The first issue to address is whether the jurisdictional threshold set out in HCR r 5.45(1) has been met – i.e. reason to believe that the plaintiffs will be unable to pay the costs of the defendants if the plaintiffs are unsuccessful.

• [23] The plaintiffs have chosen not to put a great deal of relevant financial information before the Court. Mr Hennah has made some oblique reference to Mrs Hennah’s “enviable” salary, but no details have been provided. It is clear from the substance of the case and the affidavits filed that the Hennah’s position is that, as a result of the alleged conduct of the defendants, the subject of these proceedings, they are essentially in very strained financial circumstances. The Trust and the Partnership have no assets or income. This is an appropriate case to draw an adverse inference.¹² I find that the impecunious threshold is made out.

• [24] The essential issue to address is whether, as a matter of discretion, security should be ordered now, and if so, how much. The plaintiffs seek to have the question of security deferred until after discovery.

• [25] I now address each of the relevant factors identified by Kós J in Highgate on Broadway Ltd v Devine. Kós J held that affirmative answers to the following enquiries

¹⁰ Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22](c).

¹¹ Highgate on Broadway Ltd v Devine, above n 10, at [23](b).

¹² Arnold v Fairfax New Zealand Ltd [2017] NZHC 1757 at [9].

will tend in favour of an order against impecunious plaintiffs.¹³ The overriding consideration is to balance the respective interests of the parties:¹⁴

(a) Is the plaintiff a nominal one? When a plaintiff is “nominal”, so that it is in effect representing the interests of others who will thus be spared exposure to costs, it may be appropriate to make an order for security. Westpac contends that the plaintiffs are nominal. They submit that the Trust and Partnership have no assets or income. They also rely upon the statement in Mr Hennah’s affidavit that the plaintiffs have financial support from friends, family and business associates who are keen to see them “succeed in the litigation”. I reject Westpac’s submission; the plaintiffs are not nominal in the sense that this principle contemplates. The plaintiffs are very much representing their own interests. I also note that as trustees and partners they will be personally liable for any costs award. There is no real evidence here of any third-party funder who might benefit from any success by the plaintiffs in the litigation and who is the driving force behind the claim.

(b) Is there evidence of the plaintiffs disposing of assets to avoid meeting an adverse costs order? There is no evidence in this case.

(c) Are the plaintiffs’ substantive claims prima facie unmeritorious? Ms Smith, for the plaintiffs, accepted that the claims are novel and complex. Westpac does not submit that the plaintiffs’ claims are wholly unmeritorious; though it does contend that there are some formidable obstacles for the plaintiffs to overcome. I agree. The claims are of course historic; the events at issue occurred in 2008 (approximately 14 years ago). The plaintiffs’ pleading relies heavily on allegations of misleading and deceptive conduct, but they disavow any reliance on s 9 of the Fair Trading Act 1986.

¹³ Highgate on Broadway Ltd v Devine, above n 10, at [22].

¹⁴ Highgate on Broadway Ltd v Devine, above n 10, at [24(c)].

The plaintiffs allege unconscionable conduct amounting to equitable fraud. They rely upon the Supreme Court case Gustav & Co v McLachlan Ltd.¹⁵ There will again be difficulties for the plaintiffs in establishing such a claim. There is evidence suggesting that Mr Hennah was an experienced businessperson and had the assistance of a trustee solicitor. An experienced accountant then replaced the trustee upon his death. There is also evidence to suggest that at the time Mr Hennah had some appreciation of the risk associated with interest rate swaps. Ultimately of course, these are trial issues.

The plaintiffs may also have considerable difficulty in establishing any loss. The largest quantum of damages sought is by the Partnership, namely some $17.5m claimed. The Partnership was not a counter-party to the swap, nor a Westpac customer. However, it claims the most. The stock and machinery belonging to the Partnership was sold in the receivership and Westpac says that that was the receiver’s decision, therefore complaints should be directed to them, rather than Westpac. Furthermore, the Partnership losses appear to be premised on lost revenue; Westpac says that lost revenue cannot be claimed, only a loss of profit.

Westpac further contends in reliance upon a report that it commissioned from Deloitte that the farm business would have failed in any event; the increase in borrowing costs was not the operative cause of the farming operation failing. I reject Ms Smith’s contention that the Deloitte report is inadmissible. Westpac may have used the report at mediation, but it was clearly prepared for the purpose of the litigation and Westpac is entitled, as the holder of the privilege, to waive such litigation privilege (s 57(2) of the Evidence Act 2006 applies).

I also agree with the submission of Westpac that the plaintiffs’ claim of fiduciary duty is problematic. While in principle a bank may owe

¹⁵ Gustav & Co Ltd v Macfield Ltd [2008] NZSC 47, [2008] 2 NZLR 735 at [6].

fiduciary duties to a customer, the case law establishes that “very special circumstances” must exist for a fiduciary duty to be owed by a bank to a non-customer¹⁶ (i.e. the Hennah Partnership, the most significant plaintiff in terms of quantum).

Ultimately, of course, it is only possible at this stage to form an impression of the merits of the plaintiffs’ claim. My impression at this stage is that there are some significant weaknesses, albeit the claims are not prima facie unmeritorious.

(d) Does the plaintiff have access to third-party funding? There is some evidence of financial support for the plaintiffs from external sources, but it appears to be informal and from persons or entities with no direct interest in the subject matter of the litigation. I find that this is not a factor of any real significance in this case.

(e) Would the denial of security for costs be oppressive to the reasonable interests of Westpac? As noted, this is complex litigation and may well be protracted. I doubt that it can be said to be oppressive for Westpac, although I acknowledge that it does face the risk of significant costs.

• [26] I now turn to address the factors that may tend against an order against an impecunious plaintiff:¹⁷

(a) Is it reasonably probable that impecuniosity was caused by the defendant? I have already addressed the issue of my impression of the merits. I accept the sincerity of the plaintiffs’ claims that the strained financial circumstances have a link to the issues raised in these proceedings. Westpac disputes any causative link and says that the farming operations failed because of other factors. The reasonably probable threshold has not been established.

¹⁶ BNZ v Maas-Geesteranus (1991) 4 PRNZ 689 (CA) at 693.

¹⁷ Highgate on Broadway Ltd v Devine, above n 10, at [23].

(b) Would ordering security deprive the plaintiffs of the capacity to advance a prima facie meritorious claim? I doubt that the ordering of some security would result in the plaintiffs’ claims being brought to a dead halt. The real issue is the quantum of any security, a matter I address below.

(c) Have the defendants’ delayed unduly in applying for security? The answer is no. Westpac first raised the issue of security in March 2021. The issue of security was put on hold pending an agreed mediation process. There have also been issues with the COVID-19 lockdowns. Mediation did not take place until February 2022.

• [27] As to any further factors of a general nature, there is no particular conduct of either party that is relevant in this case.

• [28] In addressing the overriding and most important consideration of how best to balance the respective interests of the parties, I conclude that there should be a modest amount of security for costs at this stage of the proceedings. I reject the contention of Ms Smith that security should be deferred and addressed after discovery. In reaching that conclusion I acknowledge the importance of access to justice, but I do not believe that the imposition of some security at this stage will prevent the plaintiffs from pursuing their claims. There are some problems with the merits of the claim, although I accept, as Ms Smith submitted, that Westpac is a large financial institution that has publicly acknowledged some role in the mis-selling of interest rate swap products in the farming industry. The Commerce Commission investigation and settlement does provide some support for the plaintiffs’ claims.

• [29] As to quantum, I conclude that the plaintiffs should pay security for costs in the sum of $25,000 with the issue to be reviewed after the conclusion of discovery and any related interlocutory applications. I reject Westpac’s submission and calculation of a sum of $50,000. Security for costs is generally a forward-looking exercise and Westpac’s calculation does include steps already taken and costs incurred in the

proceedings.¹⁸ I acknowledge that the plaintiffs’ claim is for a considerable sum and that is a factor relevant in the balancing exercise. I also record Mr Hennah’s acknowledgment that there is “an expectation that we put our money where our mouth is and we are prepared to do that if it is considered by the Court appropriate to do so”.¹⁹

• [30] I grant Westpac’s application for an order for security for costs. The plaintiffs are to provide security in the sum of $25,000 on the terms set out below.

Application by Westpac for particulars – second amended statement of claim

• [31] Westpac says that the plaintiffs’ second amended statement of claim is defective and does not give particulars sufficient to give fair notice of the causes of action relied on. They say the pleading is not compliant with High Court Rules r 5.26(b).

• [32] Particulars of pleadings are important to:²⁰

(a) inform a defendant as to the case it has to meet;

(b) limit the scope of matters the plaintiff may put in issue at trial (or in pre-trial settlement discussion);

(c) enable a defendant to know what witnesses it will need to retain and enable it to start preparing evidence ahead of the formal exchange of evidence; and

(d) provide an opportunity for a defendant to seek summary determination on the basis that the claim as pleaded is untenable.

• [33] There is substantial merit to the complaints that Westpac makes about the second amended statement of claim. I acknowledge that the claims are complex and

¹⁸ Pickard v Ambrose HC Wellington CIV-2003-091-143, 13 August 2009 at [9]; Ambrose v Pickard

[2009] NZCA 502 at [42].

¹⁹ Mr Hennah does go on to record: “However, in these circumstances, where our financial position is as a direct result of the interference from the conduct of the defendants, we are loath to seek to encumber our family and friends”.

²⁰ Platt v Porirua City Council [2012] NZHC 2445 at [19].

difficult but where, as acknowledged, the claims are novel, the damages sought are substantial and serious allegations of misconduct and dishonesty are made, it is essential that Westpac has a clear understanding of the case to which it needs to respond. The second statement of claim, a genuine attempt to address Westpac’s request for further particulars, contains a great deal of information, some of which is best categorised as evidence rather than particulars which assist Westpac in understanding the case it has to meet. This may well be a case, a complex one, where there has been an over-pleading. That can lead to the obscuring rather than the clarifying of issues.²¹

• [34] The parties accept that it not necessary for me to address the detailed request for further particulars contained in the schedule filed with the submissions. There would be little utility in my doing so. That schedule does, however, provide some useful guidance to the plaintiffs in terms of broad categories of concern that should be addressed in any amended pleading.

• [35] It is apparent from the submissions of Ms Smith that at the heart of the plaintiffs’ claim is an allegation of unconscionability. She referred me to the following paragraph in the Supreme Court judgment Gustav & Co v McLachlan Ltd:²²

... Equity will intervene when one party in entering into a transaction, unconscientiously takes advantage of the other. That will be so when the stronger party knows or ought to be aware that the weaker party is unable adequately to look after his own interests and is acting to his detriment. Equity will not allow the stronger party to procure or accept a transaction in these circumstances. The remedy is conscience-based and, in qualifying cases, the Court intervenes and says that the stronger party may not take advantage of the rights acquired under the transaction because it would be contrary to good conscience to do so. The conscience of the stronger party must be so affected that equity will restrain that party from exercising its rights at law. All necessary consequential orders may be made in aid of the primary remedy.

• [36] The above paragraph is of course expressed in somewhat broad and abstract terms. The critical issue to address in framing an amended pleading is to provide some flesh and detail as to each of the critical elements of the underlying cause of action of

²¹ Body Corporate 74246 v QBE Insurance (International) Ltd [2015] NZHC 1360 at [18(e)] citing

BNZ Investments Ltd v CIR [2008] NZHC 41; (2008) 23 NZTC 21,821 (HC) at [45] per Miller J.

²² Gustav & Co Ltd v Macfield Ltd, above n 15, at [6]. The plaintiffs also rely upon Moffat v Moffat [1984] 1 NZLR 600 and the dicta of Somers J that unconscionable bargain is but a “species” of equitable fraud.

unconscionable bargain/transaction. That requires particulars as to how Westpac allegedly unconscionably took advantage of the plaintiffs, how Westpac knew or ought to have been aware that the plaintiffs were unable adequately to look after their own interests, how the plaintiffs acted to their detriment, and how in the particular circumstances of this case was the conscience of Westpac so affected that the Court should restrain it from exercising its rights at law.

• [37] To the extent that the plaintiffs rely on equitable fraud, again, the pleading needs to be clear as to the particular kinds of obligations that they rely upon and in what particular manner those obligations were breached. The case law makes it clear that any disability or disadvantage must be sufficiently serious before equity will intervene. Again, the pleading needs to address specifically the key factual basis for contending that the disability and/or disadvantage is of that kind.

• [38] The submissions of Westpac in these interlocutory applications provide some assistance and guidance to the plaintiffs in addressing potential obstacles to a successful pursuit of their claims. So, for example, any amended pleading might sensibly address the question of whether the plaintiffs did or could reasonably have relied upon their own independent advisers²³ and whether the plaintiffs knew of the risks associated with interest rate swaps and/or had any reasonable basis for being aware of those risks.

• [39] As noted above, there are significant allegations throughout the pleading of misleading and deceptive conduct. I agree with the submission of Mr Upton that the defendants are entitled in accordance with r 5.17(2) to particulars of the facts relied upon for allegations of that nature.²⁴

• [40] It is clear from the submissions of Ms Smith that each of the causes of action are equitable causes of action, including claims of fiduciary duties said to be owed by

²³ See for example Bradley West Solicitors Nominee Co Ltd v Keeman [1994] 2 NZLR 111; Bartle v GE Custodians Ltd [2009] NZHC 998; [2010] 1 NZLR 802.

²⁴ See Kimble Contracting Ltd v Wouldes [2017] NZHC 1554 at [38]; see also Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 (HL). The plaintiffs also need to take care with the use of terminology. So for example, [53] of the second amended statement of claim alleges “glossing over the content” of the use of derivative products. The pleadings should make clear whether allegations of this kind amount to the deliberate withholding of information or a breach of a duty of loyalty or are an allegation of carelessness/breach of a tortious standard of care.

Westpac in their alleged capacity as financial adviser. The plaintiffs rely upon the Australian decision Commonwealth Bank of Australia v Smith,²⁵ where it was held:

A bank may be expected to act in its own interests in ensuring the security of its position as lender to its customer, but it may have created in the customer the expectation that nevertheless it will advise in the customer’s interests as to the wisdom of a proposed investment. This may be the case where the customer may fairly take it that to a significant extent his interest is consistent with that of the bank in financing the customer for a prudent business venture. In such a way the bank may become a fiduciary and occupy the position of what Brennan J has called “an investment adviser” (Daly v Sydney Stock Exchange Ltd [1986] HCA 25; (1986) 160 CLR 371 at 384–385).

• [41] Any pleading relying upon allegations of that kind must address the particular ways in which the defendants created in the plaintiffs the expectation that it would advise in the plaintiffs’ interests as to the wisdom of a proposed investment. That is not to be answered by quoting large extracts of evidence but, rather, requires clear and precise allegations as to exactly what Westpac did to create an actionable expectation. That may legitimately be done by cross-referencing but does need to be done in a consistent and readily understandable fashion.

• [42] I grant the defendants’ application that the plaintiffs file an amended pleading. The terms of my orders are set out below.

Costs application by Westpac – discontinuance by Mr Hennah as plaintiff

• [43] In the original statement of claim and amended statement of claim Mr Hennah was named as the second plaintiff in his personal capacity.

• [44] Westpac says that Mr Hennah had no standing to bring the proceeding in his personal capacity, having been adjudicated bankrupt on 23 March 2013.

• [45] A notice of discontinuance was filed and served by Mr Hennah on 22 March 2022. Westpac seeks costs in relation to that discontinuance in the sum of $10,157.

• [46] The starting point is r 15.23 of the High Court Rules. It reads:²⁶

²⁵ Commonwealth Bank of Australia v Smith [1991] FCA 375; (1991) 42 FCR 390 at 391.

²⁶ That is based on a 2B calculation with a 25 per cent uplift.

Costs

Unless the defendant otherwise agrees or the court otherwise orders, a plaintiff who discontinues a proceeding against a defendant must pay costs to the defendant of and incidental to the proceeding up to and including the discontinuance.

• [47] Costs are ultimately at the discretion of the Court. In this case, I am not persuaded that the defendants have truly incurred any additional cost in defending the proceedings as a result of Mr Hennah being a plaintiff in his personal capacity. There may have been some, relatively minor, attendances but in the overall scheme of the case, and given the focus of the interlocutory applications to date, I do not regard this as material. I agree with the submission of Ms Smith that to award costs here would be disproportionate. I also accept that the plaintiffs gave some genuine consideration to whether Mr Hennah, despite his bankruptcy, had legitimate claims in relation to the protection of his reputation and the like.

• [48] I dismiss the defendants’ application for costs in relation to the discontinuance by Mr Hennah.

Result

• [49] I grant the defendants’ application for security for costs. The plaintiffs are required to deposit the sum of $25,000 by way of security with the Registrar by 15 July 2022. In the event that security is not lodged, then the proceedings are stayed.

• [50] If security in the sum of $25,000 is paid, as I have ordered, then any further security may be addressed following the completion of discovery and the hearing and determination of any associated interlocutory applications.

• [51] I grant the defendants’ application that the plaintiffs provide further particulars by way of an amended statement of claim. Any amended statement of claim is to be filed and served by 30 July 2022.

• [52] I dismiss the defendants’ application that Mr Hennah pay costs as a result of him discontinuing his claims in his personal capacity.
• [53] As to costs on these applications, I am of the preliminary view that having succeeded on the two main applications, Westpac is entitled to costs and on a 2B basis. Some minor deduction should be made for the loss on the costs application, but that is unlikely to be significant.

• [54] If costs cannot be agreed, then memoranda are to be filed (no more than three pages) within 14 days.

Associate Judge P J Andrew