Maurice Blackburn commenced a class action against Westpac on behalf of persons who entered into certain Westpac branded loans between 1 January 2011 and 17 February 2018.
The claim alleges that Westpac failed to comply with its responsible lending obligations in respect of these loans, and that customers have suffered, or are likely to suffer, loss. The class action was commenced by Mr and Mrs Tate.
Important update: class action to be discontinued
The Tates have instructed us to ask the Court to approve an order that will discontinue the class action. The reasons for their seeking to discontinue the class action are set out below.
Westpac has been successful on appeal in the ASIC Proceeding
As you may be aware, ASIC sued Westpac alleging that the bank breached certain responsible lending obligations under the National Consumer Credit Protection Act 2009 (Cth) (ASIC Proceeding). The ASIC Proceeding was one of the reasons why the Tates instructed Maurice Blackburn to investigate and commence the class action. Justice Perram found in favour of Westpac in August 2019. ASIC appealed to the Full Federal Court in February 2020 but on 26 June 2020, the Full Federal Court also found that Westpac was successful. ASIC decided not to lodge a further appeal to the High Court.
If you would like further information about the ASIC Proceeding, here are some links:
What this means for the class action
To date, the class action has been funded by a third-party litigation funder, Harbour Fund IV, L.P (Harbour). Harbour has paid significant amounts for the Tates’ legal costs so far. Harbour also paid the Tates’ “security for costs”. This money was paid into an account held by the Court in the early stages of the class action. If the class action were to continue, further large amounts of money would likely be required to be paid into Court at the request of Westpac. The money is “security” to cover Westpac’s costs in the event that Westpac was to win the class action.
In light of Westpac’s success in the ASIC Proceeding and ASIC’s decision not to lodge a further appeal, Harbour does not wish to continue to fund the class action. Nor will it provide further “security” payments on behalf of the Tates.
The Tates cannot afford to pursue the case without the backing of Harbour and as a result, they have instructed us to apply to the Court for an order allowing them to discontinue the class action. The application will be filed with the Court by 24 August 2020 and we expect that the Court will hear the application before the end of September 2020.
What this means for you
Before the discontinuance hearing
You do not have to do anything in response to the application to discontinue the class action. However you may contact Maurice Blackburn by 21 August 2020 if you:
- have any questions or concerns about the application; or
- are a group member and would like to be heard by the Court in relation to the application to discontinue.
While you should read the pleadings carefully and get legal advice to determine if you are a group member (Further Amended Statement of Claim), generally the matters that would qualify you as a group member are if you:
(a) entered into a Westpac-branded credit contract for less than $5,000,000 between 1 January 2011 and 17 February 2018 that was secured by a mortgage of residential property;
(b) the credit was wholly or predominately:
(i) for personal, domestic or household purposes;
(ii) to purchase, renovate or improve residential property for investment purposes; and/or
(iii) to refinance such a loan; and
(c) suffered loss or are likely to suffer loss because Westpac:
(i) failed to make reasonable inquiries about your financial situation, requirements or objectives;
(ii) failed to verify your living expenses or essential expenses; or
(iii) did not assess the suitability of the credit contract in compliance with the legislation.
After the discontinuance hearing
If the Court approves the application to discontinue the class action, the case will come to an end and you will not be required to do anything. However, it is important that you understand the following things:
- the discontinuance does not affect any of your rights to pursue a claim against Westpac;
- if you were a group member in the class action, the timeframe you had to commence a claim against Westpac for the same conduct alleged in the class action was “paused” when the Tates commenced the class action on 21 February 2019.
In other words, if you were a group member, you have not lost (a) your legal right to make a claim against Westpac or (b) any time in which to commence that claim.
The time limit for bringing a claim will start running again when the discontinuance is approved. In general terms, the time limit is 6 years from when you first suffered loss as a result of Westpac’s claimed contraventions of the legislation. This can be a complex question and you should get legal advice about it.
If you have any questions or concerns in relation to the matters above, please do not hesitate to contact Maurice Blackburn at firstname.lastname@example.org or on 1800 931 358.