Westpac
Archer Field’s Story
In 1990, a 99-year lease of Caves House was granted to Jenolan Caves Resort Pty Ltd (JCR), and subsequently, Jenolan Caves Reserve Trust (the Trust) Board was set up by an earlier Liberal Government. Silkbard Pty Ltd (later renamed JCR) and the Trust were members of a Public Private Partnership (“the PPP”). I purchased the shares and units of PPP with the NSW government in 1994.
The PPP members were bound by conditions in 3 commercially defining documents: the Lease, the Service Agreement, and the Plan of Management.
In 1996 the Trust Board was reconstructed, removing the commercial members. The performance of the Trust suffered, and infrastructure maintenance backlogs occurred.
In 2001, the 99-year lease of Caves House was worth $11.33M according to my bank because it was developed from a zero-star rating to a superior 4-star standard. The bank then increased my loan to $5.8M.
From early 2002 onwards, there were frequent and serious breaches of the Trust’s obligations to maintain the infrastructure in the village and provide clean water as required by the Services Agreement and the Plan of Management.
In December 2003, the Trust, without my knowledge, met at Wombeyan Caves, Taralga, NSW. Bob Debus, Member for Blue Mountains, and Attorney General attended, as did Prof. Richard Mackay, Chair, Jenolan Caves Reserve Trust (the Trust), and his board. At the meeting, Mackay and the Trust Board agreed not to be reappointed. They would have known that the 99-year lease, developed to a high standard, but was now worthless due to their decision.
In February 2004, Andrew Fletcher, Trust, General Manager commented on the decision at Wombeyan to not reappoint the Board. He said, ‘an Administrator can be appointed pursuant to Section 58ZE of the NPWS Act’. However, Mackay and his board did not protect the business owners when agreeing with the government, in December 2003, to not-reappoint the Board.
In May 2004, I signed a new loan contract with my bank. It included the bank’s essential documents, a Facility Offer, the St George Bank’s General Standard Terms, 2003 Code of Banking Practice, and its valuation of $11.33M (dated 18 February 2001), carried out by its valuers, A D Magin, Val No.2568, and R E Roberts Val No.1593.
Prior to my signing this new contract, the bank had reviewed events at Jenolan Caves but did not provide me with its report. I read the bank’s contract and under clause 25.1 of the 2003 Code of Banking Practice (‘the 2003 Code’) it had to, ‘exercise the care and skill of a prudent and diligent banker in selecting and applying credit assessment methods and forming an opinion on my ability to repay the loan’.
In July 2005, Gail Kelly and her directors would also have found this when the bank carried out another review of the Jenolan Caves businesses. Again, they did not provide me with a copy of their review. Jeff Shaw, who was acting for me, at that time, claimed that under the Act, governments and banks must comply with the law. He was previously NSW Attorney General and claimed the new government could not sell or transfer the lease.
In September 2005, my company could not continue paying the bank’s interest. The bank then appointed Receivers and Managers, despite knowing that Jenolan Caves visitor numbers had fallen from 270,000 in 1995 to 210,000 in 2004. The visitor number declined when the government relocated the administration and senior executives to Oberon and then to Bathurst. During this period, visitor numbers declined by 20%,
In November 2005, I wrote to Gail Kelly and requested ‘a meeting to address a preferred way forward that maintains the value of the asset and protect the rights of our companies, and to ensure all parties are protected.’ There was no reply, suggesting the bank’s dispute resolution procedures were not protecting customers like me. We later found that the bank misled millions of customers because none could resolve disputes free of charge.
The bank did not comply with the 2003 Code. Since 2003, Westpac’s managing director Dr. David Morgan knew that the federal government published recommendations made by John Howard’s Taskforce on Industry Self-Regulation. It states:
The promotion of dispute resolution schemes is both beneficial for industry, and to the consumer. For industry, a dispute resolution scheme can be used as a marketing tool to differentiate itself from competitors. Whereas, for consumer, the promotion of a dispute resolution schemes informs them of their rights (p.116).
In June 2003, John McFarlane, Westpac’s current Chairman, also knew that the dispute resolution schemes inform customers of their rights. He was also the bankers’ association chair that published details of how the code will be monitored. Richard Viney, the association’s code reviewer, commented on this. He said:
The code has real teeth as I know of no other banking code in the world that is enforceable as a contract by the customer.
The 2003 Code, however, was dishonest, as small businesses and farmers could not resolve disputes free of charge. McFarlane and Morgan knew that the bank had provided a code that was not enforceable. It was, in fact, a dishonest scheme, or fraud.
In December 2005, the bank appointed Grant Thornton, Receivers and Managers. It required Paul Billingham, its director, to deal with serious misconduct that was happening at that time. Billingham did not comment on what caused the damages when my business relied on the Trust, but it was operated without a Trust Board. At that time, all documents filed at Caves House were retained by Grant Thornton.
Prior to March 2006, everything the bank, the Receivers and Managers, and the Trust did was done secretly. I wrote to Philip Crawford, Director, Henry Davis York, the bank’s external lawyers, and noted this but he did not respond. I wrote to Kelly requesting a meeting ‘to discuss an arrangement that will satisfy banks with minimal damage to both our businesses.’ Gail Kelly, like McFarlane and Morgan, would have known the bank’s dispute resolution procedures, published by the Australian Bankers’ Association (ABA), were a dishonest scheme.
On 6 June 2006, Billingham wrote to me, in my capacity as a director of Jenolan Caves Resort (JCR), and made a distressing statement. He said, ‘the lease has not been offered for sale and no unsolicited offers were received. A few days later, I wrote to St George Bank’s Chair, John Thame, claiming the bank had not complied with the 2003 Code.
On 27 June 2006, without telling me, St George Bank signed the ‘Jenolan Deed’ with NSW Government, thereby agreeing to sell and transfer my property. This was kept secret, which was intentional. When discovered, it took the businesses in the Jenolan village 10 years to access the Deed when a Tribunal ruled in our favour. We could now consider options to recover damages when the bank transferred the $12.5M lease to the NSW Government without, according to Billingham, offering it for sale.
Then the bank’s lawyers commenced an action in court to bankrupt me. At that time, we could not prove the bank had acted dishonestly or misled the court. In 2009, we could not prove the Internal Dispute Resolution (IDR) procedures were deceitful and we could not resolve disputes free of charge. The late Jeff Shaw, before he retired, could not prove that the bank’s directors had betrayed me and their other customers.
In October 2007, the bank and its lawyers again betrayed me. I filed complaints with the Code Compliance Monitoring Committee (‘CCMC’). The compliance monitors were required to ‘investigate and make a determination on whether my allegations were fair’. In 2012, the business owners were still angry about dishonest practices by the government and the bank. We met Steven Munchenberg, ABA, Managing Director, who offered to contact Westpac on behalf of Rosemarie Bayne, a Jenolan business owner, because the bank would not investigate our complaints free of charge. The bank, however, did not respond.
About ten years later, in October 2018, Jenolan business owners encouraged me to write to the Office of Australia Information Commissioner (OAIC) to obtain documents held by CCMC in relation to the bank’s misconduct. The documents noted Westpac and CCMC had concealed, or compounded crimes and that their lawyers and government were complicit. The OAIC noted the bank applied the 2004 Code in my case which was not part of my contract, and neither the government nor the bank was willing to pay us compensation as set out in CCMC’s Constitution. The parties alleged to have been involved were Dr. June Smith, Brian Given PSM, Nicola Howell, Carmel Franklin, Angela Green, and Ralph Haller-Trost.
Also, in 2018, I attended a protest meeting with several hundred small businesses and farmers at Parliament House. They claimed banking practices were dishonest, and they wanted to expand the Royal Commission. Some of them filed submissions with the Parliament and others with Commissioner Kenneth Hayne. In documents we discovered there was a clear intent by the bank when directors took an oath but tried to avoid telling the truth, the whole truth and nothing but the truth. We believe the bank misled Kenneth Hayne by failing to provide all documents in relation to its misconduct and practices that fell below community standards since 2008.
We suggest Westpac did not include allegations that it had not always resolved disputes free of charge since 2008. We also believe Brian Hartzer misled Kenneth Hayne when questioned by Rowena Orr QC, in January and February 2018.
In 2019, Tasmania Small Business Council (TSBC) obtained crucial documents. In July, TSBC was advised by ASIC that there was a document omitted from clause 35.1(b) of the Code. It was ASIC Regulatory Guide 165 (2001).
In November, TSBC’s Chair, Geoff Fader, was advised by Sean Hughes, ASIC Commissioner, that banks must comply with the code in place when loan contracts are signed. This supported Fader’s view that banks must comply with the code, otherwise, they would be attempting to obtain a financial advantage.
My financial loss report notes that my damages were $64M. Westpac should have dealt with this immediately. The Prime Minister should accept Prof. John Hewson’s views of 15 October 2022 when he suggested Australian banking misconduct is a problem that must be rectified.
Prime Minister Albanese and NSW Premier Dominic Perrottet will have to address these deceitful practices, so Australia does not become Banksters’ paradise.
ENDS
JMA’s Story
In 2005, the Jenolan Caves House lessee experienced financial difficulty following a decision by the government to not reappoint the Jenolan Caves Reserve Trust (the Trust) Board. It meant the government breached the National Park and Wildlife Act; it was in breach of the Services Agreement. At the same time, St George Bank (the bank) recalled the lessee’s loan. The bank appointed Receivers and Managers and, on 6 June 2006, wrote to the lessee stating the lease had not been offered for sale nor had the government received any unsolicited offers.
Ten days later, on 16 June 2006, the lessee filed a complaint with St George Bank’s Chairman, Mr. John Thame. It noted the bank must comply with the 2003 Code of Banking Practice. This was an essential part of the lessee’s loan contract, setting out the rights of the bank’s customers. The clauses referred to the St George Bank’s Chair included 25.2. It required banks to “try to help customers overcome financial difficulties.” The Chair also referred to clause 35.3, stating the bank will “within 21 days … complete its investigation and inform the customer of the outcome.” These practices did not happen.
Instead of complying with this Code, the bank sold the property, with all furnishings in the hotel, to the government at 10% of the bank’s own valuation. As a result, many people like us working for the businesses suffered damages.
This is our story.
In 1990, a 99-year lease of Caves House was granted to Jenolan Caves Resort Pty Ltd (JCR), and there was a Jenolan Caves Reserve Trust (the Trust) Board set up by an earlier Liberal Government. JCR and the Trust were members of the NSW Public Private Partnership. The members were bound by conditions in three commercially defining documents: the Lease, the Service Agreement, and the Plan of Management.
In 1996, the Trust Board was restructured, removing most of its commercial members. The performance of the Trust suffered, and infrastructure maintenance backlogs occurred. From 2002, there were frequent and serious breaches to the Trust’s obligations to comply with the Plan of Management and to provide clean and potable water.
In July 2003, the Trust carried out a review of Jenolan Caves Water Supply, which noted “water failures cause severe constraints on the operation of Caves House”. In August, the Trust Chairman, Mr. Richard McKay stated the Trust’s infrastructure was aging and that he had requested funding from the Treasury to replace breaking pipes.
For the next three years, water problems at Jenolan Caves damaged all the businesses, and they could not operate profitably. The concerns were referred to the Trust, Office of Environment, Department of Premier and Cabinet, and government several ministers. These problems included an intermittent water supply, failure by the Trust to maintain and clean pipes, failure to replace lids on tanks, and failure to filter the water. As a result, the water was often muddy in colour and the hot water supply to the hotel failed frequently.
The most important consequence of the Trust’s water failures was the presence of E-coli and other contaminants which were revealed through independent water tests. Guests to the hotel were reporting stomach problems after drinking the water and the resort was required to provide bottled water to the hotel’s visitors.
In addition, tourist numbers at Jenolan Caves had fallen dramatically from 272,443 in 1996/97 to 214,453 in 2002/03. The decline in visitor numbers occurred following the restricting, by the new government, of the Trust Board with few commercial members. This greatly concerned the Jenolan Caves businesses. The businesses also expressed a view that declining visitor numbers were the result of increased ticket prices.
The businesses were suffering when the government undermined the relationship between the Lessee and the bank. There was unreliable water supply, water toxicity, and decreasing visitor numbers. The Lessee was removed from managing the property on 9 December 2005 and the bank appointed Receivers and Managers to take control. For the three years between 2004 and 2006, the businesses relied on expert reports calling on the Trust to install filtration so the water it provided to the staff and guests was not potable and safe. Neither the Government nor the Trust relied on the expert’s reports.
On 9 December 2005, St George Bank appointed Receivers and Managers without considering whether the government was still intending to acquire the lease and assets at a reduced cost. Without the Trust Board, owners of the lease could simply not refinance the property.
On 16 June 2006, the Receivers and Managers wrote to the lessee stating they did not offer the lease for sale, nor did they receive unsolicited offers. A hotel without a continuous supply of potable water was unsalable. On 30 June 2006, the Lessee’s bank sold the 99-year lease back to the government at a significant discount.
As a result of the government’s decision to provide unfiltered, toxic water to staff and guests for several years, everyone suffered except the government. When the government obtained the lease, it immediately installed filtration. Documents discovered several years later confirmed that the government, three months prior to acquiring the 99-years, had obtained quotes to install water filtration.
Government’s Attempt to Destroy Jenolan Businesses by Failing to Meet Contractual Agreements
On 3 September 2003, a review, approved by the government, stated that no public funds could be used to benefit the lessee of Caves House. The Trust was therefore unable to meet its duty to provide suitable water for human consumption, 24 hours a day.
The Trust’s Manager, Peter Austen, had written to the lessee regarding a complaint about disruption to the water supply. He stated, “the Trust has little control over unpredictable events such as this. The Trust has at all times operated in accordance with the Service Agreement”. There were times when the award-winning 4½-star hotel restaurant was preparing meals for a large group of guests and water had to be carried in buckets from taps located in the village.
The staff was desperate because they had to address these problems and deal with angry guests. The JMA Parties arranged for independent water tests, which found the water did contain E.coli and other pathogens. Sonic Healthcare supported these results, but the government and the Trust dismissed them claiming the water was safe. The Department of Health then found toxicity in the Trust’s water supply. Its results were kept from the lessee and the businesses for the next six months. The government simply continued to state, “the Trust denies your claim the water supplied to Caves House is unfit to drink”.
On 14 October 2011, Mr. Templeton wrote a letter and provided a chronology regarding the water problems at Jenolan Caves. He sent it to the Attorney General and Minister for Justice, the Minister for Health, the Minister for Environment, Member for the Blue Mountains, and Member for Bathurst. A further copy was sent to the then Premier Barry O’Farrell, who later admitted to having an unreliable memory.
On 28 March 2012, Mr. Paul Miller, General Counsel for the NSW Department of Premier and Cabinet, responded to Mr. Templeton on behalf of the Attorney General and the Minster for Justice replied. He stated:
The Government is satisfied that matters relating to water quality at Jenolan Caves were adequately addressed at the time and has formed the view that any further inquiry is not warranted.
On 10 May 2012, Ms. Rosemarie Bayne filed a Freedom of Information application under the GIPA Act regarding Mr. Miller’s reply. The documents provided by the government, maintained, at various intervals, that the water was adequately investigated. However, it claimed that neither the Government nor the Trust investigated all water problems between 2004 – 2006.
St George Bank’s Unfair Contract
The JMA Parties filed complaints with the bank for transferring the Jenolan lease to the Government without offering it for sale. This was shortly after banks were self-regulated and could breach contracts with impunity. JMA obtained a copy of the CCMC Association’s Constitution on 27 July 2012.
By May 2004, St George Bank invited the lessee to sign a new contract to replace the older one. Given the previous seven-year relationship between the lessee and the bank, there was no reason to expect the bank would have invited the Cave House Lessee to sign a deceitful loan contract without full disclosure. St George Bank claimed it was a model banker and, under the contract, would investigate all complaints free of charge within 21 days. The bank did not intend to meet its responsibilities under the contract.
Complaints to Bank and CCMC
On 16 June 2006, the lessee filed a complaint with St George Bank, which laid out concerns that the bank disregarded allegations of unlawful behaviour by it and the government suggesting they had both acted dishonestly.
The complaint referred to specific sections of the 2003 Code, alleging St George Bank had breached its contract. Clause 2.2 of this Code states the bank will act responsibly and ethically toward customers. Clause 25.2 states the bank “will try to help customers overcome financial difficulties with any credit facility it has with the bank”.
The bank’s directors did not comply with these clauses when they were dealing with the Lessee. Instead of helping to sell the hotel for a fair price, the bank took control of the property ten days before selling the lease at a discount. At no time did the directors comply with the dispute process in clause 35 of the Code.
On 30 June 2006, prior to amendments to the Act being assented to, the bank signed the Jenolan Deed that remained secret for a long time. On 3 October 2007, the lessee filed a complaint with the Code Compliance Monitoring Committee (CCMC). It responded by stating it could not investigate complaints lodged more than a year after the event or a year after the complaint was known. This was not included in the 2003 Code, but part of the 2004 Code. On 27 July 2012, Ms. Bayne obtained a copy of the CCMC’s constitution, which had been concealed since February 2004.
During this period, JMA Parties filed several complaints with the CCMC regarding the bank’s knowledge of the unlawful appointment of the Trust’s Administrator in February 2004, and the CCMC’s secret constitution. None of these allegations were carried out as required under the dispute resolution procedures in the 2003 Code.
Premier Barry O’Farrell and Minister Robin Parker.
In 2014, the lessee attended Sydney Local Court and attempted to require the government and the bank to comply with 2013 subpoenas. On 24 April 2014, the Crown Solicitor’s Office, acting for the Trust and the Department of Premier and Cabinet, attended the court without complying with subpoenas. On 24 April, the Premier was Mike Baird, and the proper Minister was Rob Stokes. Legal Aid suggested the government may have perverted the course of justice.
Alleged Invalid Appointment
On 2 December 2003, Premier Bob Carr signed recommendations that the government would replace the Trust board. When making the decision, Carr had access to the Special Review, which did not recommend the board be replaced. However, the following day, the Cabinet approved recommendations to replace the Trust Board.
On 12 December 2004, Shadow Minister for Environment issued a press release. The lease said, “there is a strong belief that the way the government is running the cave is illegal.” It also said, “the Minister can only appoint an administrator if he sacks the Trust.”
On 24 March 2011, retiring Members of Parliament, provided JMA copies of records in relation to Jenolan and Jenolan Caves Reserve Trust’s matters. They included a bundle of papers (more than 1000 pages) containing details of the Liberal and Nationals supporting documents for statements they made in Parliament in support of our allegations that the appointment of the administrator was invalid. The documents included advice by Robertson, T, SC, regarding the allegedly unlawful appointment, which was presented to the Members of Parliament that day.
The administrator’s appointment was an essential part of the government’s case. It allowed the government to acquire the Caves House at a discount. The appointment of the Trust’s administrator without removing the Trust Board meant that the government had acted unlawfully.
Court Date: 24 April 2014
There were several GIPA applications filed in 2013 and 2014 to determine whether the government acted lawfully. Regardless, the Trust, DPC, OEH, and the responsible ministers did not comply with subpoenas prior to attending court on 24 April 2014. Mr. Field was acting on behalf of his mother. However, she died on that day, and Field would then be acting on behalf of his mother’s estate.
Mr. Field, therefore, did not attend court, appointing a lawyer to represent him and his mother’s rights. He had commenced the action one year earlier to protect his mother’s interests because there was a considerable body of documents alleging the government did not act lawfully. This continued until the day that the lawyer attended the court. Field’s lawyer sought a ruling by the court that the government had not acted diligently when purchasing his family’s furnishings and assets in 2006.
On 24 April 2014, the Local Court, Small Claims Division found against Mr. Field, stating that he did not have to stand in the court to bring this case. This was not considered relevant by Magistrate Prowse when the Scone Court agreed, with the consent of the government, for the subpoenas to be filed in 2013. It was now, one year later, and the court in Sydney had completely changed its opinion.
When the matter was before the court on 24 April 2014, the Trust Administrator was Dianne Leeson, Assistant Director General, DPC, and the responsible minister was Premier Mike Baird. There is no evidence that the DPC rectified the conduct of Assistant Director General Leeson, nor did Premier O’Farrell follow the 24 April 2014 court case.
The JMA Parties believed the government’s decision not to investigate the ownership the late Jackeline Field’s furnishings, not owned by the company, introduced serious concerns that no reasonable person would have allowed happening. The decision by the Trust and the government was simply theft.
The government’s decision in 2013 to not investigate these allegations was not dealt with by the government when failing to comply with the court’s subpoenas. In 2014, without complying with subpoenas, Baird, Stokes, and Speakman appear to have acted unconscionably.
Conclusion
Prior to 2003, JMA businesses experienced good profits, however, they were unaware of the way the Council on the Cost and Quality of Government report was being created. It would be used to change the administrative structure of the Trust, and to demonstrate the government’s unwillingness to meet contractual obligations.
Since 2004, the Trust’s Administrator refused to accept the government acted dishonestly by not providing a continuous supply of potable water. It also meant there would be no intention by Premiers and members of government to address events that had destroyed families’ businesses and people’s lives since April 2003.
On 10 November 2005, The Hon Michael Baird had been NSW Premier for 18 months. He and his government’s ministers took no action when receiving advice from retired Court of Appeal Judge, The Hon RP Meagher AO QC, who stated:
There is, on the facts, no dispute that the Trust is in default of its obligations. The water it provides (when it does provide) is hopelessly far from potable. Noxious weeds abound, and nobody has cared to eradicate them. These facts are not only asserted by Jenolan Caves Resort but have been admitted by the Trust in a letter from its chairman.
The evidence suggests Baird’s government did not comply with the law. However, it could also be argued the deceitful practices of St George Bank allowed the NSW government to recover Caves House, rated superior by AAA Tourism at 4½ stars. The bank and Gail Kelly helped Mike Baird and his government to recover the $12.5M property for only a fraction of its value.
The bank’s directors played a significant role in allowing these events to happen. In 2021, the JMA Parties discovered the bank, by omitting ASIC Regulatory Guide 165 (2001) in the 2003 Code, had a clear intent to commit a crime. This is one of Australia’s greatest stories. The victims were people and businesses in the Jenolan village who did not suspect these deceitful practices by a leading bank and the NSW government.
My name is Paul Nielsen, and I would like to tell you a story about Ann Genner, who I met a few years ago. Ann arrived in Australia from Berlin with her mother shortly after the end of the Second World War. Her story is particularly disturbing: she was cheated by her bank and its directors. Recently, Ann found that her bank committed a massive crime, or was it simply negligent?
One of the small business councils reviewed her case and prepared a short submission. It outlined the reasons Ann believes her bank sold her a predatory loan and was involved in criminal conduct. The bank denied this. Ann has asked me to prepare this story about her case.
Ann has been a long-term resident of the Wentworth electorate and has always been disappointed that neither Malcolm Turnbull nor David Sharma would help her. With the Royal Commission, Ann asked a law firm to help her resolve complaints with the bank, but the bank took no action. Ann believed that resolving complaints with her bank should not be difficult because she had rights under the 2004 Code, but later she found it would not help her.
In 2018, a respected law firm prepared an outline of Ann’s case and provided it to the bank’s directors and later to the Senate, but they dismissed it. During this period, Ann was in poor health. Expecting her bank to comply with the 2004 Code, she had to accept that she was cheated, and her bank had intentionally left her with nothing.
Ann was born in Berlin in 1944. She migrated to Australia with her mother in 1950 and they joined with her father who had migrated earlier. When Ann was fifteen, she left school and worked in her mother’s shop. In 1964, Ann was 20, when her mother died from cancer. In 1971 she married a man who was later a successful businessman.
In November 1990, Ann was divorced. In the divorce settlement, Ann received the house in Victoria Road, Bellevue Hill, and rented it to cover the cost of her debt. Ann obtained a mortgage from Australian Securities Limited.
On 11 March 2008, Ann was offered a loan from Westpac. She accepted it because Westpac was one of Australia’s leading banks. At that time, Ann did not understand the difference between a home loan and a business loan, and therefore signed the bank’s business loan agreement.
Given the complexity of loan terms, when signing the loan, Ann believed that she only needed to pay minimum repayments of $10,000 per month. The rent from her house was sufficient rent to pay that amount. Actually, the interest was approximately $32,000 per month.
Ann was 15 years old when she left school. When she signed Westpac’s loan contract it was almost 50 years later: she was 64 and working as a shop assistant earning $400 a week. I discussed this with Ann, and it was difficult to accept that the bank’s experts would require her to agree on the conditions and standards of the loan contract without legal assistance.
In April 2010, the bank increased her loan limit, which would expire in October, six months later. The variation had a special condition attached, which required Ann to have a contract signed and sell the house by 31 July 2010, 90 days later.
On 13 October 2010, Westpac called in Ann’s loan, and she was distressed. The bank told her that her house was valued at $7.5M and if she did not sell it, the bank would. Ann said this was more frightening than being in Germany shortly after the Second World War, and therefore did everything possible to sell the house for $7.5M. She contacted leading agents in Double Bay, and none said that they could sell the house for $7.5M. Ann was frightened.
On 14 December 2010, the agents found a buyer who purchased the house for $5.5M, and shortly after Ann wrote to Gail Kelly, Westpac Bank’s Chief Executive. Ann said:
I am writing to you as a last resort. As a lady and the reputation, you hold of being fair, I plead my case. All I request is that you look at my mortgage with Westpac and see if under these extreme circumstances that you could make changes to the enormous interest rates which I have been charged over the period of my mortgage loan.
The pressure, duress, and circumstances leading to the acceptance of the contract of Sale of my home to a conclusion that has left me virtually penniless, with no way of buying a home and now having to sell my furniture and belongings just to live.
Gail Kelly did not reply.
It suggested the bank sold Ann a predatory loan. She had no business in 2008, how did it sell her a business loan? Westpac was probably negligent and/or reckless when her sole asset was only a house that was part of her divorce settlement.
If Westpac had complied with the special conditions of the business loan, it would have found that Ann had a job as a shop assistant in a clothing store and she was earning $400 a week that barely covered her living costs. It meant that she would be earning circa $19,000 a year when the interest and repayment costs were about $32,000 per month.
If the bank had sold her a home loan, there would have been safeguards in the contract protecting homeowners, but not businesses. Faced with the bank selling her home, Ann treated the repayment as a fire-sale and lost her equity.
Ann’s initial complaint was that Westpac did not provide her with essential documents about her loan or include a copy of the 2004 Code of Banking Practice.
Gail Kelly should have understood what happened when Ann wrote to her. Ann had suffered difficulties because it had taken a long time before she understood the licensee had to meet its responsibilities. Her complaints should not have continued for ten years, and during this time Ann’s health has deteriorated.
As mentioned, Ann wrote to Kelly in 2011, who had previously been Deputy Chair of the Australian Bankers’ Association. Kelly at this time was supported by the industry body that drafted the 2004 Code. However, Westpac’s staff were not required to investigate Ann’s complaints, preferring to breach the dispute provisions in clause 35.1 of the 2004 Code. If Kelly resolved the dispute free of charge, her staff would have met the cheap, speedy, fair, and accessible alternative that remains available to Ann.
In June 2018, Ann’s solicitor (O’Brien Criminal & Civil Solicitors) filed a submission with the Banking Royal Commission. It outlined Ann’s complaints, and her losses since 2011, which should not have occurred.
As part of his endeavour, on 4 November 2018 Ann’s solicitor lodged a complaint with the Westpac Chief Executive, Brian Hartzer. The complaint, like the earlier one with Kelly, remains open.
I do not believe Westpac Bank, the licensee, met its requirements under the Corporations Act 2001. Ann had right to have her disputes resolved as set out in the 2004 Code and the bank had to meet relevant provisions in the AS4269-1995 Australian Standards. Its directors and senior managers did not meet these requirements.
In summary, the licensee did not engage honestly and fairly with Ann to resolve her dispute when the loan was impaired. The bank’s threat to introduce an external controller to sell the house meant that Ann would lose her rights and trust the bank to sell it at the best possible price.
When O’Brien Criminal & Civil Solicitors filed Ann’s complaints in 2018, Hartzer knew Ann could not afford to pay the interest costs. It meant the licensee had sold Ann’s loans without checking her creditworthiness or ability to pay the interest.
The bank knew, in 2007, that Ann had not always paid the ASL interest on time and that her taxable income was Nil. Her tax records would support this. This demonstrates that the bank behaved in a deceptive manner and imposed unreasonable and unjustifiable loan terms. It required Ann to sell the house above its current value within 90 days.
Westpac’s directors misled Ann when they offered her a business loan, secured by her house, to refinance ASL’s home loan. The licensee provided her a business loan when she did not have a business. This was evidence that it sold her a pure-asset loan. This, as well as her limited education, meant the bank should not have asked her to sign the loan contract without legal advice.
I finished my education at UNE 25 years ago, and this was the first time I had attended a Senate Standing Committee on Economics. It was held at Fraser Suites, Pitt Street Sydney. Ann Genner’s case was included in four submissions to the public hearings on 10 June 2021 and was one of four cases in relation to banking practices.
The Senate References Committees Members attending were its Chair Anthony Chisholm, Deputy Chair, Slade Brockman, and Members Anthony Brag, Jenny McAlister, Rex Patrick, and Jess Walsh. There were also 60 participating members, Mat Caravan, Katy Gallaher, Jacky Lambie, Susan McDonald, Bridget McKenzie, and Penny Wong.
On 7 August 2021, two months after the inquiry, I was experiencing difficulties obtaining transcripts. I wrote to Mark Fitt, Committee Secretary, and said Ann was concerned that the Senate would not release the document outlining her case which raised very serious allegations about misconduct by her bank. I told Fitt that she was “aged and weak and would like her complaints resolved without any unnecessary delay”.
Fitt, two days later, said, “Ann has no other route to access private industry documents and in reference to your request to contact witnesses, the answer is no. Any further actions will constitute contempt of the Senate.” I withdrew my comments. However, I was concerned that the Senate References Committee Secretary and members had evidence of a crime but preferred to be guilty of concealing this crime.
Disclaimer
This story has been prepared for and at the request of Ms. Ann Genner. In preparing this story, I have relied on the source information provided to us by Ms. Ann Genner and have believed this information is accurate and complete.
I have also supplemented the source documentation provided with publicly available information, where appropriate.
Footnotes
1 https://rcrlaw.com.au/unconscientious-exploitation-of-borrowers-special-disadvantage/
