First Plaintiff v Defendant

1 The plaintiffs, Thirty-Sixth Penny Pty Ltd and Alamin Pty Ltd are members of the Minster group of companies ('Minster Group'). The Minster Group is engaged in property development and in operating businesses in the hospitality industry in the Gippsland region. From at least 2004 until February 2017, the defendant, National Australia Bank Limited ('Bank') was the Minster Group's primary financier.

2 This proceeding was commenced in September 2017 by a writ and general indorsement. In their statement of claim filed on 12 October 2018, the plaintiffs alleged, in summary, as follows:

(a) on or about 19 July 2006, the Bank offered to provide the plaintiffs a bill facility with a combined limit of $9,736,630.00, on terms which included payment of a facility fee of 0.9% of each plaintiff's respective facility limit ('2006 facilities');

(b) the Code of Banking Practice ('Code') in force at the time applied to the Bank's provision of the 2006 facilities;

(c) between 2006 and 2009, the plaintiffs paid all amounts due and payable under the 2006 facilities;

(d) in or about August 2009, discussions commenced between representatives of the Minster Group and the Bank. Representatives of the Bank indicated that the 2006 facilities would be renewed, but that the facility fees would be lifted from 0.9% to 3.25% per annum;

(e) at a meeting between representatives of the Minster Group and the Bank at the Bank's headquarters on 8 September 2009, a representative of the Bank told the representatives of the Minster Group present at the meeting that if the Minster Group did not accept the Bank's terms, the Bank would sell off the assets of the Minster Group, and the beneficial owners of the group's assets would be lucky to be left with one million dollars;

(f) by reason of the conversation referred to above, and the expense involved in obtaining alternative financing, the plaintiff accepted the Bank's offer (including the revised facility fees) ('2009 offer') in or about January 2010;

(g) in or about November 2010, June 2011 and February 2012, the plaintiffs accepted further offers of facilities on substantially the same terms as the 2009 offer, paying an additional $19,067.59 per month by way of facility fees over and above what was paid pursuant to the 2006 facilities;

(h) the conduct of the Bank in using threats to procure an increase in the facility fees was unconscionable, contrary to s 12CA(1) of the Australian Securities and Investment Commission Act 2001 (Cth) ('ASIC Act') and s 12CB(1)(a) of the ASIC Act, and was contrary to Clause 2.2[1] of the Code; and

(i) by reason of the Bank's unconscionable conduct and/or breach of contract, the plaintiffs lost the sum of $1,182,190.58, being the facility fees paid by the plaintiffs between 12 September 2011 and 30 November 2016 over and above what was payable in accordance with the 2006 facilities.

(a) referred to the terms of the 2006 facilities, which included a covenant on the part of the first plaintiff not to purchase any further properties, the requirement that the loan to valuation ratio ('LVR') of the properties securing the 2006 facilities not exceed 65 percent, and terms which enabled the Bank to vary any fee and to conduct a review of the Minster Group's position;

(b) said that on a number of occasions in 2009 the plaintiffs and other companies in the Minster Group were in default of the terms of the 2006 facilities;

(c) referred to discussions between representatives of the Bank and representatives of the Minster Group during the course of 2009 regarding the renewal of the Minster Group's facilities, requests for further funding from the plaintiffs and other entities within the Minster Group, requests to release securities over properties, valuations of security properties, overdrawn accounts, and the deteriorating LVR;

(d) said it was entitled to vary the facility fees;

(e) denied the allegations made by the plaintiffs with respect to the meeting on 8 September 2009, and said that the following matters were discussed during the course of the meeting:

(i) the Minster Group's request for additional funding; and

(ii) the Bank's position with respect to the Minster Group's options, which included refinancing with another financial institution, selling some properties, working through a funding solution with the Bank (including re-pricing) or doing nothing, which could result in the file being referred to the Bank's 'work out' team;

(f) said that the Bank offered to renew and consolidate the Minster Group's existing facilities, and to provide additional funding to the first plaintiff and another entity within the Minster Group, on the basis of a facility fee of 3.25% for all borrowings by the Minster Group, on condition that, among other things, the directors of each entity within the Minster Group resolve 'that the entry into, and the performance of its obligations under [the 2009 offer] ... is in its best interests and for its benefit';

(g) said that by reason of the resolutions referred to in sub‑paragraph (f) above, the plaintiffs are estopped from claiming that their acceptance of the 2009 offer was for reasons other than their decision that their acceptance of the 2009 offer was in their best interests;

(h) referred to the renewal of the facilities in April 2010, November 2010, June 2011 and February 2012, and the terms of those renewals, including the term requiring the provision of resolutions in the terms referred to in sub-paragraph (f) above;

(i) denied that its conduct was unconscionable in all of the circumstances, in particular given that:

(i) the Bank was entitled to increase the facility fee;

(ii) the extension of further credit of $9,600,000 to the Minster Group pursuant to the 2009 offer;

(iii) the Bank was entitled to take into account the risk profile of the plaintiffs and other members of the Minster Group and prevailing market conditions in setting a facility fee;

(iv) the Bank was entitled to enforce its security if the first plaintiff was in default of the 2006 facility; and

(v) the Minster Group was a sophisticated client with access to independent professional advice;

(j) the conduct complained of (being the conduct of the Bank during the meeting on 8 September 2009) could not have been a breach of the agreements concluded as a result of the plaintiffs accepting the 2009 offer ('2009 facilities') because the meeting took place prior to the acceptance of the 2009 offer; and

(k) paragraph 26 of the Bank's defence stated as follows:

(a) any cause of action that the plaintiffs may have that relates to the conduct alleged in paragraph 15 of the statement of claim, which is alleged to be unconscionable conduct under the ASIC Act (in paragraph 22 of the statement of claim, which is denied), accrued on 15 February 2010, being the date that a Facility Fee of 3.25% was first paid by each of the plaintiffs;

(b) any cause of action that the plaintiffs may have arising from the alleged breach of the Facilities (as pleaded at paragraph 24 of the statement of claim, and which is denied), accrued on 8 September 2009, the date of breach pleaded in the statement of claim;

(c) this proceeding was commenced on 11 September 2017, which is more than 6 years after the dates on which the alleged causes of actions accrued; and

(d) in the circumstances, any claims the plaintiff have had against NAB arising out of the matters pleaded in the statement of claim (which are denied) are barred by s 12GF(2) of the ASIC Act (unconscionable conduct) or section 5(1)(a) of the Limitation of Actions Act 1958 (Vic) (breach of contract).

4 In their reply dated 10 May 2019, the plaintiffs stated, in summary, as follows:

(a) any variation in the facility fees needed to be notified to the plaintiffs in writing or advertised in the mainstream media;

(b) the variation to the facility fees could not be made in a way inconsistent with the provisions of the Code, or in a way which was unconscionable;

(c) any overdrawing of accounts by members of the Minster Group in 2009 was rectified immediately, with all applicable charges being paid;

(d) the 2006 facilities did not require renewal, as they were not due to expire until 31 July 2016;

(e) they did not pass resolutions of the nature referred to in paragraph 3(f) above, and in any event, an estoppel defence is not available to the Bank because it would be contrary to the policy of the ASIC Act;

(f) the Bank's entitlement to enforce its securities only arose upon the Bank giving the first plaintiff a default notice, and no such notice was given;

(g) the 2009 facilities and subsequent renewals ('renewed facilities') were entered into in the context of the Bank's conduct at the meeting on 8 September 2009; and

(h) they denied that their claims were statute barred.

5 On 22 May 2019 the Bank issued a summons seeking summary judgment against the plaintiffs pursuant to rule 22.16 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'), and sub-sections 62 and 63 of the Civil Procedure Act 2010 (Vic), on the basis that the plaintiffs' claims are time barred pursuant to s 12GF(2) of the ASIC Act, or s 5(1)(a) of the Limitation of Actions Act 1958 (Vic) ('LAA'), in that, in both cases, the relevant cause of action accrued more than six years prior to the date of the issue of this proceeding.

6 The Bank relied upon an affidavit sworn by Mr Jason McKenzie, a director in the Property division of the Bank's Corporate and Institutional Banking team, in support of the Bank's application. Mr McKenzie deposed, in summary, as follows:

(a) he has reviewed the Bank's files regarding its dealings with the Minster Group and believes that the Bank provided banking facilities to the Minster Group from at least 2004;

(b) he has not been able to locate an executed copy of the 2009 offer;

(c) the first time facility fees calculated as being 3.25% of the facility limit was deducted from the plaintiffs' accounts was 15 February 2010; and

(d) the Bank was first alerted to the plaintiffs' claims when it received a letter from the plaintiff's former solicitors on or about 19 April 2017.

7 The plaintiffs relied upon an affidavit of the director of the plaintiffs, Mr Peter Minster, where he deposed that the plaintiffs claim the excess facility fee paid from 12 September 2001 (being six years prior to the issue of this proceeding). Mr Minster deposed as follows:

The plaintiffs claim that on each date when a payment was made ... a new cause of action arose under ss 12CA(1) and 12CC(1)(a) [now s 12CB(1)(a)] [of the ASIC Act].

8 However, the plaintiffs resiled from this position at the hearing of the application for summary judgment.

9 The defendants rely upon s 63 of the Civil Procedure Act 2010 ('CPA'), which provides as follows:

Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

10 The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the oft-cited decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[2] as follows:

(a) the test for summary judgment under section 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail test' essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[3]

11 Further, Neave JA (who otherwise concurred with the statements made by the majority above) stated as follows:

... I am concerned that undue emphasis on the caution with which a court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 having little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s 1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purpose of [the CPA], imposed by s 8.[4]

12 Traditionally, the Courts have been reluctant to grant summary judgment where the sole issue is whether a plaintiff's claims are time barred, save in the clearest of cases.[5] However, as noted by counsel for the Bank in her submissions, in Bodycorp Repairs Pty Ltd v Holding Redlich,[6] the Court of Appeal stated that granting summary judgment upon limitation grounds may be appropriate 'where there is no relevant issue of fact which required resolution, and nothing to suggest that there is any prospect further evidence could materially alter [the date upon which the cause of action accrued]'.[7]

13 I do not understand the plaintiffs to cavil with the above proposition: rather, the plaintiffs submitted that a fresh cause of action under s 12CA(1) of the ASIC Act arose on each occasion the 2009 facilities were renewed in 2011 and 2012, and that any claim for the additional facility fees paid pursuant to the renewed facilities were not time barred.

14 In her written outline of submissions, counsel for the Bank focused, quite understandably, upon the statement in Mr Minster's affidavit to the effect that the plaintiffs' claims that a new cause of action arose on each occasion the higher facility fee was paid. She submitted that the authorities make it clear that successive or subsequent losses arising out of the same impugned conduct do not give rise to a new cause of action. In the current case, the plaintiffs' cause of action for unconscionability accrued on 15 February 2010, when the higher facility fee was paid by the plaintiffs pursuant to the 2009 facilities, some seven and a half years prior to the issue of this proceeding.

15 Further, in relation to the plaintiffs' breach of contract claim, time began to run from the time of the alleged breach, which the Bank says must have been at the meeting on 8 September 2009.

16 Section 12CA(1) of the ASIC Act provides as follows:

A person must not, in trade or commerce, engage in conduct in relation to financial services if the conduct is unconscionable within the meaning of the unwritten law, from time to time, of the States and the Territories.

17 Section 12CB of the ASIC Act also prohibits unconscionable conduct with respect to the supply of financial services, not limited to unconscionable conduct within the meaning of the common law or in equity.[8]

18 Section 12GF of the ASIC Act provides that a person who suffers loss and damage as a result of, among other things, a contravention of ss 12CA(1) or 12CB of the ASIC Act, may recover that loss and damage, with any action in that regard to be commenced within six years after the day the cause of action accrued.

19 It is common ground that this cause of action accrues once the claimant suffers loss and damage.

20 The Bank relied upon a number of authorities[9] in support of its contention that successive or subsequent losses (in this case, the monthly deduction of the higher facility fees from the plaintiffs' accounts) do not give rise to a new cause of action, or otherwise keep alive a cause of action which has already accrued. I do not understand this contention to be controversial.

21 The plaintiffs, in turn, relied upon a number of authorities concerning statutory claims for misleading and deceptive conduct (a statutory cause of action which also accrues upon proof of loss or damage, which is accepted by both parties to be analogous to the statutory cause of action of unconscionability) where it has been stated that contravening conduct might cause several discrete or distinct losses which might occur at different times, and the cause of action in relation to a particular loss will not be complete until that particular loss has occurred. Given that the losses claimed by the plaintiffs were incurred pursuant to agreements which were entered into in 2011 and 2012 (and could not have been incurred prior to the plaintiffs entering into those agreements), the plaintiffs' causes of action in relation to those losses did not accrue until payments were made under these agreements, that is, within time. In that regard, the plaintiffs' entry into the renewed facilities could be considered to be analogous to the occurrence of a 'contingency', at which time the cause of action accrued, consistent with the analysis of the High Court in Wardley.[10]

22 By way of example, counsel for the plaintiff referred to the decision of Toohey J in Arcadi v Colonial Mutual Life Assurance Society Ltd,[11] where his Honour stated as follows:

There may be several distinct losses, flowing from conduct in contravention of the Act and the cause of action is not complete until those losses have occurred.[12]

23 Further, in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2),[13] Gummow J referred to the statement of Toohey J above, and said:

The substance of what was there said is that (i) once an applicant has suffered loss or damage relevant to his claim, time begins to run, (ii) but there may be several distinct losses (and, semble, distinct claims) flowing from conduct in contravention of Parts IV or V of the TP Act, and (iii) where the conduct complained of is promissory in character, the court should not be constrained by analogies derived from tort.[14]

24 In Kalgoorlie Consolidated Gold Mines Pty Ltd & Ors v F.L. Smidth Inc & Ors,[15] Hasluck J of the Supreme Court of Western Australia stated:

... for the purpose of a claim under the statutory provisions, the time when loss and damage is suffered is a question of fact to be resolved in the context of the particular circumstances ...

... it is not inconsistent with the language of s 82 of the Trade Practices Act that when the conduct complained or arguably causes several discrete losses which occur at different times then the right to recover the amount of each loss accrues only when the particular loss accrues.[16]

25 Finally, in Murphy v Overton Investments Pty Ltd ('Murphy'),[17] the High Court was faced with a situation where the loss and damage suffered as a result of misleading and deceptive conduct was not a loss of the value of the asset purchased (a long term lease in a retirement village) but a future exposure to higher than expected costs for outgoings. The Court, applying the principles established by the High Court in Wardley,[18] held that the plaintiffs did not suffer loss and damage upon the entry into the lease, but rather on the date from which the higher outgoings were charged. The charging of the higher outgoings was the fulfilment of the 'contingency' to which the plaintiffs were exposed by reason of their entry into the lease, and time began to run from that date.

26 The decision of the High Court in Murphy[19] was an orthodox application of established principle. However, some observations made by way of obiter are of relevance to the current case, albeit that those remarks are directed at the statutory provision governing relief for misleading and deceptive conduct (which provided for wider relief than just damages).

27 The High Court emphasised the perils of approaching the remedial provisions of the Trade Practices Act 1974 (Cth) with a view to drawing analogies with claims under the general law, stating:

In the present case, analogies with the tort of deceit appear to have led to an assumption ... that a person can suffer only one form of loss and damage as a result of a contravention of [Part] V of the Act.[20]

It should not be assumed that the loss and damage which a person suffers as a result of a contravention of [Part] V is necessarily singular,[21]

It would be wrong, therefore, to assume that, where a person is induced by misleading or deceptive conduct to undertake a continuing future obligation, the remedy to be awarded for a contravention of Part V of the Act must be, or ordinarily will be, a lump sum award of damages. There will be cases in which that will be the appropriate remedy. But that is a conclusion to be reached only after identifying the loss or damage which has been or will likely be suffered. That loss or damage may take several forms. It may be incurred at different times.[22] (emphasis added)

... while ss 82(1) and 87(1A) may prevent an applicant from suing for some items of loss or damage, they may leave open the possibility of recovering others, even though all items of loss or damage arose from a single piece of contravening conduct. The question was raised briefly in argument but not debated. Its resolution is not necessary in this case, and should be postponed until some case arises in which its resolution is necessary and it is fully debated.[23] (emphasis added)

28 Notwithstanding the statements above, no example has been provided where it has been found at trial that a single instance of contravening conduct has given rise to distinct losses, with the limitation periods varying according to the date those different losses were sustained.

29 The difficulty with the statements in the authorities relied upon by the plaintiffs is that those statements leave open the possibility of different categories of loss arising from the same contravening conduct capable of being identified as separate causes of action, without providing a useful analytical framework to reconcile that proposition with the general rule that damages must be awarded once and for all.[24] Further, there seems to be some inherent difficulties with the proposition that the Bank's alleged unconscionable conduct caused the plaintiffs to enter not just one, but a succession of disadvantageous contracts.

30 Further, I note that the decision in Murphy,[25] including the proposition that different losses may be suffered at different times, and, as such, different claims may be made for each of the losses, with different limitation periods has been subject to some judicial criticism.[26] It is somewhat telling that it does not appear that, in the fifteen years that have passed since the decision in Murphy,[27] there has been no occasion where it has been necessary for the High Court to resolve the question postulated in the last extract from Murphy[28] at paragraph 27 above, that is, whether separate claims could be made for distinct losses arising out of the same piece of contravening conduct.

31 However, while these difficulties may highlight some flaws in the plaintiffs' case, particularly with respect to causation, I am conscious that in this application the Bank seeks summary judgment on the grounds that, in effect, the Bank's limitation defence has such strong prospects of success that the plaintiffs' claims have no real prospect of success. If it were not for the fact that the 2009 facilities were 'renewed' in 2011 and 2012, I would have little hesitation in granting summary judgment. However, the use of the term 'renewed' somewhat obscures the fact that the subsequent renewals of the 2009 facilities amounted to the parties entering into separate contracts. Setting aside some of the difficulties the plaintiffs may face in proving that the Bank's conduct in 2009 caused the plaintiffs to enter into the renewed facilities in 2011 and 2012, I cannot be satisfied to the requisite degree of certainty that at trial, particularly given the statements in the authorities referred to above, a court would find that no separate cause of action arose once payments were made under each of the renewed facilities.

32 Notwithstanding the potential difficulties arising out of the observations in Murphy,[29] which are, I accept, obiter, and their apparent inconsistency with the principle that damages must be awarded once and for all, the fact that the High Court has left the issue open, even if only with respect to a particular statutory cause of action, tells strongly against granting summary judgment on the unconscionability claim, given the caution with which I should approach an application for summary judgment on a limitation point.

33 Accordingly, I will not grant summary judgment with respect to the plaintiffs' claims under the ASIC Act. However, I would make the observation that the plaintiffs' case to the effect that their entry into the renewed facility agreements in 2011 and 2012 was caused by the Bank's conduct in 2009 was clearer from counsel's submissions than from the statement of claim.

34 During the hearing of the application, the debate concerning whether the plaintiffs' claims were statute barred focussed upon whether the relevant clause of the Code said to have been incorporated by reference into the 2006 facilities, and into the 2009 facilities and the renewed facilities, had retrospective operation, or was promissory in nature.

[we] will act fairly and reasonably towards you in a consistent and ethical manner. In doing so we will consider your conduct, our conduct, and the contract between us.

36 Counsel for the Bank submitted that such a term, to the extent it was incorporated by reference into the 2009 facilities and the renewed facilities, could only operate retrospectively if there were clear words to that effect. In the current case, the conduct complained of was pre‑contractual conduct, insofar as the plaintiffs rely upon the terms of the 2009 offer and the renewed facilities. Counsel for the plaintiffs submitted that this statement was not consistent with authority, and in any event, the question of the construction of the various contractual instruments which governed the relationship between the parties is quintessentially a matter for trial.

37 In my view, it is not necessary to resolve the above debate regarding the proper construction of the relevant clause of the Code. It is clear from the statement of claim that, on the plaintiffs' own case, the conduct which was said to amount to a breach of the Code was the conduct of the Bank's representatives at the meeting on 8 September 2009.[30] Whether the Bank's duty to act fairly, reasonably and ethically towards the plaintiffs was founded in the terms of the 2006 facilities, the 2009 facilities, or the renewed facilities does not alter the fact, on the plaintiffs' own case, the breach occurred outside the limitation period prescribed under s 5(1)(a) of the LAA, as it is upon breach that the plaintiffs' cause of action accrued. The entry of the plaintiffs into the renewed facilities in 2011 and 2012 is not relied upon by the plaintiffs in their statement of claim: rather, the acceptance of the 2009 offer and the subsequent renewal of the 2009 facilities are said to be the consequences of the Bank's breach of contract, not breaches in themselves. While the plaintiffs in their written submissions contend that the relevant breaches occurred after the plaintiffs entered into the renewed facilities, and would seek leave to amend their statement of claim accordingly, no such amendment was proffered, and this application can only be determined on the case as is currently pleaded.

38 Accordingly, the plaintiffs' claims for breach of contract have no real prospects of success, and should be dismissed. However, the plaintiffs should be permitted to pursue their unconscionable conduct claims, without prejudice to the Bank's right to contend at trial that those claims are time barred.

39 I shall hear further from counsel on the form of order and the question of costs.

[1] The relevant clause is in fact clause 3.2, but nothing turns on that for the purpose of this application.

[2] [2013] VSCA 158; (2013) 42 VR 27.

[5] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533 ('Wardley').

[6] [2018] VSCA 17.

[8] Section 12CB(4)(a) provides that 'It is the intention of Parliament that this section is not limited by the unwritten law of the States and Territories relating to unconscionable conduct.'

[9] James v Australia and New Zealand Banking Group Ltd [1986] FCA 41; (1986) 64 ALR 347, 392; Keen Mar Corporation Pty Ltd v Labrador Park Shopping Centre Pty Ltd [1988] FCA 88 [27]; Calmao Pty Ltd v Stradbroke Waters Co‑owners Co‑operative Society Ltd [1989] FCA 407; (1989) 21 FCR 28, 31.

[10] [1992] HCA 55; (1992) 175 CLR 514.

[12] Ibid, 45,454. See also James v Australia and New Zealand Banking Group Ltd [1986] FCA 41; (1986) 64 ALR 347.

[13] [1987] FCA 230; (1987) 16 FCR 410.

[15] [2003] WASC 52.

[17] (2004) 215 CLR 388.

[18] [1992] HCA 55; (1992) 175 CLR 514.

[19] (2004) 215 CLR 388.

[24] Darley Main Colliery Co v Mitchell (1886) LR 11 App Cas 127.

[25] (2004) 215 CLR 388.

[26] Jamieson v Westpac Banking Corporation [2014] QSC 32; (2014) 283 FLR 286 [194]-[195].

[27] (2004) 215 CLR 388.

[30] See paragraphs 15 and 23 of the statement of claim. The allegations in paragraph 15 of the statement of claim concern what was said by the Bank's representative at the meeting on 8 September 2009.