Internet Business Systems Australia Pty Ltd v Heartland Bank Limited [2025] VSC 798

(a) for Bryk, the Affidavits of Paul George Forbes, affirmed 26 September 2025 and 20 October 2025; and

(b) for Heartland, the Affidavit of Simon Walter Johnson sworn 10 October 2025.

1. In summary, Bryk claims that in December 2020 it was contacted by Heartland regarding the potential provision of software and related technology services by Bryk to Heartland to create a new online platform for its retail consumer lending business ('Consumer Lending Platform'). The Consumer Lending Platform was to manage Heartland's consumer vehicle lending business ('Consumer Lending Project') and it was intended that the software would be made available to car dealerships in order to offer financing options to their customers.
2. Bryk had previously been engaged by Heartland to deliver a product referred to as the 'Wholesale Lending Solution', used by car dealerships to facilitate wholesale lending. Work by Bryk for the Wholesale Lending Solution commenced in late October 2020 and formally concluded on 1 June 2021.
3. The evidence of Heartland is that the Consumer Lending Project comprised 35% to 40% of Heartland's revenue and a book of 60,000 loans worth over $1 billion.
4. Following the provision of a request for proposal by Heartland on 17 February 2021 ('RFP') and a proposal provided by Bryk in response on 3 March 2021 ('Proposal'), on 4 May 2021, the parties entered into an agreement ('Services Agreement') under which Bryk would be engaged by Heartland to carry out work pursuant to various 'Work Orders' entered into between the parties. In the interim, negotiations continued between the parties in respect of a contract suite for the development of the Consumer Lending Platform. A Work Order was entered into on 10 June 2021 ('Work Order Request 2'), whereby work on the preparation of design and documentation would commence on 7 June 2021 for a contract period of six weeks, for which Bryk would be paid a fixed lump sum of $100,000.
5. Bryk then alleges that, on 20 July 2021, the parties agreed a further Work Order by which Bryk would provide further services in relation to the Consumer Lending Platform ('July 2021 Agreement'). By that agreement Bryk alleges that it was agreed that Bryk would:

(a) provide a 'sandpit environment' for Heartland to develop its detailed design requirements for the Consumer Lending Platform;

(b) provide a ticketing system ('Jira System') for Heartland to communicate its requirements to Bryk for variations to the Consumer Lending Platform; and

(c) commence implementation of the Consumer Lending Platform based on its then understanding of Heartland's requirements, with modifications as directed by Heartland via the Jira System;

and, in return, Heartland would pay Bryk on a time and material basis, on an agreed resourcing level and at a daily 'burn rate' of NZD 1,310.

1. Bryk alleges that work was carried out in accordance with the July 2021 Agreement, including conducting workshops with Heartland, providing Heartland with a production version of the Consumer Lending Platform in the required 'sandpit environment', and modifying and developing the Consumer Lending Platform in accordance with a 'consolidated gaps document' provided by Heartland, and in accordance with further variation directions and instructions.
2. Bryk alleges that, in February 2022, the parties entered into a further agreement ('February 2022 Agreement') in respect of work needing to be done to make the Consumer Lending Platform a 'minimum viable product' ('MVP') such that it could 'go live'. Bryk alleges this agreement constituted a further Work Order under the Services Agreement or, in the alternative, a separate contract.
3. Bryk claims that, between 23 February 2022 and late June 2022, it provided further services pursuant to the February 2022 Agreement, including continuing to modify and develop the design and functionality of the Consumer Lending Platform pursuant to ongoing directions and instructions and developing an 'Implementation Plan' for delivering the Consumer Lending Platform.
4. On 28 June 2022, Heartland instructed Bryk to cease work on the Consumer Lending Platform ('Cease Work Instruction').
5. Bryk alleges that it has rendered invoices for work performed in accordance with the July 2021 Agreement and the February 2022 Agreement, which remain unpaid, in the sum of $2,777,301.15.
6. Bryk claims a debt for the unpaid invoices and interest or, alternatively:

(a) damages for breaches of the Services Agreement, the July 2021 Agreement and the February 2022 Agreement;

(b) that Heartland represented to Bryk, and Bryk assumed, that it would be paid for the services it provided, on which Bryk relied, and Heartland is estopped from acting contrary to that assumption;

(c) a quantum meruit for the services provided to Heartland at its request; and

(d) damages for misleading and deceptive conduct or unconscionable conduct by Heartland contrary to ss 18 and 21 of the Australian Consumer Law.

1. Heartland denies it is liable to Bryk for any of the amounts claimed. It contends that the Services Agreement related only to the Wholesale Lending Solution, and had no relevance to the Consumer Lending Platform. Heartland therefore disputes the scope of the Services Agreement, and disputes both the existence and scope of the July 2021 Agreement and February 2022 Agreement. It further denies that it made any representations to Bryk as to payment or that it received any benefit from Bryk's services. It makes its own counterclaim for loss it claims to have suffered arising from representations made by Bryk as to the time, functionality and cost of Bryk's proposed Consumer Lending Platform, and claims damages equivalent to the lump sum amount of $100,000 paid to Bryk under Work Order Request 2.
2. During the course of argument I was taken to various passages in the witness statement of Christopher Patrick Francis Flood, filed 15 May 2025. Mr Flood was the CEO of Heartland during the relevant period and will be a key witness for Heartland in this proceeding. In his witness statement Mr Flood discusses the key events giving rise to this dispute, including, relevantly for this Application, the reasons for 'the decision to move on from Bryk' and instead to engage Oracle to provide a solution for the Consumer Lending Project.

1. The legal principles governing applications under r 29.08 of the Rules were not in dispute between the parties and are well established. Rule 29.08 provides as follows:

29.08 Order for particular discovery

(1) This Rule applies to any proceeding in the Court.

(2) Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating -

(a) whether that document or any, and if so what, document or documents of that class is or has been in that party's possession; and

(b) if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it.

(3) An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents. The legal principles applicable to an application for particular discovery were not in dispute between the parties and are summarised below.

1. Decisions of this Court have made clear that discovery is of documents that relate to a question or fact in issue on pleadings between parties, but public interest in privacy and confidence demands that the compulsion to discover documents should not be pressed 'further than the course of justice requires'.[1]
2. The otherwise broad scope of the Court's powers in relation to discovery conferred by ss 7 and 55 of the CPA and O 29 of the Rules is nonetheless regulated by the overarching purpose of the CPA. So much is apparent from the following passage in the High Court's decision (relating to corresponding legislation in New South Wales) in Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd:[2]

That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.

1. As J Forrest J observed in Volunteer Fire Brigades Victoria v CFA (Discovery Ruling):[3]

The overriding consideration of the CPA is to ensure that the parties receive a fair trial i.e. 'a just resolution' to use the words of the CPA_._ However, a fair trial is not a perfect trial. It is, rather, the best trial that a court can provide to the parties within reason and in proportion to the issues in dispute and the court's resources. Accordingly, demands for discovery of documents which are peripheral to the central issues cannot be entertained. The Court is obliged to focus on the central issues as best it can be determined at this point in the litigation.

1. Heartland made the following general submissions in opposition to the Application. First, the categories that Bryk seeks to be discovered are imprecise and expansive in an undue way, relevant to the pleaded issues. I have considered this submission on a case by case basis in respect of each category.
2. Second, it submits that, relying on the evidence of Mr Johnson, disproportionate time and expense would be incurred in making discovery, relevant to the quantum in dispute. Heartland submitted that, given the relevant disputed agreements are said to have been entered into at a time when the parties were negotiating what was intended to be a full suite of contracts governing their commercial relationship, the discovery exercise is likely to produce correspondence about those negotiations that will need to be reviewed for privilege. There are also likely to be confidential documents amongst the Board materials that will require detailed review and redaction prior to disclosure. Heartland accepted that these matters were not a basis for refusing discovery, but would nonetheless add to the disproportionate burden of production, which the Court should take into account. For its part, Bryk takes issue with the evidence given by Mr Johnson in respect of the likely burden and cost of the discovery exercise, and submitted that the evidence of Mr Johnson does not take into account efficiencies that may be achieved by way of technology in litigation.
3. As I understand it, Heartland's general submission as to disproportionality was made in part in light of concerns about the scope of the date ranges sought for the categories, and the requirement in many categories that documents that 'relate to' certain things be discovered. In the Revised List, the form of wording that sought documents which 'relate to' certain matters is no longer pressed by Bryk. Date ranges have also been reduced. On that basis I anticipate that at least some of the concerns raised by Heartland have to an extent been addressed by way of the amended categories now sought in the Revised List. Where the Defendant made specific complaints as to disproportionality in light of the breadth of individual categories, I have considered that complaint under each category below.
4. Third, Heartland submits that regard should not be had to witness statements to give context to what might be matters arising on the pleadings. It contends that any determination of what is a question or fact in issue on the pleadings between parties is to be reached on the pleadings alone and, in going beyond the pleadings, Bryk has identified categories of documents which are not drawn with reference to the issues in dispute.
5. I accept that a witness may raise issues on which a party may then seek specific discovery to assist it to prepare for cross-examination of that witness on matters which are relevant on the pleadings. In those circumstances, discovery should be ordered, but only where the Court is satisfied that the specific evidence given or to be given by the witness relates to a question or fact in issue on pleadings between parties. I have considered that prerequisite in respect of each category below.
6. The categories of documents proposed by Bryk (and, where relevant, an alternative formulation proposed by Heartland) in the Revised List of Categories are set out in Annexure A to this ruling. To avoid repetition, I describe in summary terms each category below, and the parties' arguments, and then give my ruling and reasons in relation to each. The ruling (including wording of any ordered categories) is then set out in the table in Annexure A for the assistance of the parties.

1. By Category 1 Bryk seeks documents sent, received, created or last modified by any member or secretary of any meeting of the Heartland board of directors or steering committee for the Consumer Lending Project ('SteerCo') between 1 November 2020 and 31 August 2023, recording or referring to the Consumer Lending Project including documents recording the meetings. In response, Heartland proposes a refined category of packs, minutes, agendas, meeting invitations or transcripts for the Board and SteerCo meetings for the period 1 November 2020 to 31 August 2022.
2. Bryk submits these documents are relevant to whether there was a binding contract and its scope, whether representations were made to Bryk and in what form, whether Heartland's conduct was unconscionable, whether Heartland received a benefit from Bryk's services, and what steps Heartland took or didn't take to find another supplier for the services. Bryk contends that the broader date range is relevant on the basis that it seeks documents in respect of the benefit Bryk contends Heartland received from Bryk's services and, in respect of its defence to counterclaim, Bryk's position that Heartland had an obligation to mitigate its loss, in relation to finding another supplier.
3. Heartland accepts that it should discover some documents in respect of this category, but seeks to confine its scope, and the date range for these documents. In light of the Cease Work Instruction on 28 June 2022, Heartland submits that documents beyond August 2022 are not relevant and ought not form part of any discovery order.
4. There was some discussion in relation to Category 1 and other categories about whether it was necessary for Bryk to plead in its defence to counterclaim that Heartland had not mitigated its loss. The question of whether mitigation of damages or loss is a matter that must be pleaded has been the subject of much judicial consideration - it will depend on the circumstances and remains, at least to some extent, an unsettled question.[4] In any event, for the reasons I explain below, in relation to this and other categories I have been able to reach a concluded view on each category without considering Bryk's submission that the documents are relevant to its defence to counterclaim of failure to mitigate. On that basis I have not needed to consider whether the absence of any express pleading in that defence to counterclaim that Heartland failed to mitigate is a factor relevant to the scope of discovery sought.
5. I consider that the broader category in the form sought by Bryk is appropriate to be discovered. I accept that there may be documents and correspondence between members of the Board of Directors or SteerCo members and others, in the context of meetings of those bodies, where the role or work of Bryk in respect of the Consumer Lending Project may be discussed. In those circumstances, extending the category to documents such as handwritten notes and correspondence (beyond the types of documents agreed to be provided by Heartland) is appropriate. I further consider that Heartland's submissions regarding disproportionality to a significant extent have been addressed by Bryk's subsequent revisions to this category, which (in addition to removing the phrase 'relate to') confine the scope sought to just members and secretaries of the Board and SteerCo (as opposed to any attendees), and it no longer extends to members of sub-committees.
6. I also accept Bryk's submissions that a date range for this category beyond the date of the Cease Work Instruction is appropriate. Bryk claims against Heartland (in the alternative) on a quantum meruit. I accept that documents and correspondence up to August 2023 may be relevant to that question, particularly in circumstances where invoices were issued by Bryk to Heartland for the disputed work as late as June 2023, and on 26 June 2023 Heartland advised Bryk (by its solicitors) that it did not intend to pay those invoices. Correspondence and documents up to that period may be relevant to the question as to whether and to what extent Heartland received a benefit from the services Bryk alleges to have provided.
7. For those reasons, there shall be an order in the form sought by Bryk in respect of Category 1.

1. By Category 2 Bryk seeks documents from Heartland which record or refer to the RFP. Heartland opposes discovery of that category in its entirety.
2. Bryk submits that the scope of the technical specifications of the Consumer Lending Platform is a key issue in dispute. Bryk argues that Heartland would be expected to have had regard to the initial specification set out in the RFP throughout the life of the Consumer Lending Project and after the Project was terminated, including internal discussions as to whether to pay Bryk's invoices which followed. Bryk submits that it is also relevant to Heartland's counterclaim, which alleges misleading and deceptive conduct in respect of Bryk's proposal in response to the RFP.
3. I accept Heartland's submission that this category of documents does not relate to a question between the parties on the pleadings. Heartland's counterclaim is that, had Bryk not made certain representations in its Proposal in response to the RFP, Heartland would not have entered into Work Order Request 2. Bryk's claims as to 'Services' it performed, and Heartland's denial as to the benefit it received from those Services, is confined to work performed under the July 2021 Agreement and the February 2022 Agreement. The scope of work for which Bryk now claims does not appear to relate to the RFP.
4. Unlike Category 1, Category 2 is not confined to specific office-holders who might readily be identified so as to limit the custodians whose documents would need to be searched. Mr Johnson gives evidence that this will likely involve searching document repositories of at least 60 people including current and former Heartland staff and/or contractors. The breadth of the category is such that I consider it will result in a disproportionate discovery obligation having regard to the limited relevance of the documents. For this category and those that follow, where I have formed a view that to order discovery would be disproportionate, I have been able to satisfy myself as to the disproportionality of each discovery task (weighed against the likelihood that it will produce documents which will go to the real issues in dispute) without needing to accept the disputed evidence of Mr Johnson regarding the likely costs of the discovery exercise.

1. In this category Bryk seeks documents which record or refer to the reasons for the decision to engage Bryk in relation to the Project. Bryk relies on the reasons it gave for Category 1 in respect of this category. In circumstances where Bryk no longer seeks documents 'relating' to the decision to engage it in relation to the Project, Heartland agrees to provide this category, accepting that the documents are relevant to its counterclaim. However, having regard to the relevance of the documents, it seeks to confine the date range to between 1 September 2020 and 8 April 2021.
2. For the reasons I gave above in respect of Category 1, I accept that documents that record or refer to the reasons for Heartland's decision to engage Bryk may be relevant to why Heartland ultimately decided not to pay the invoices issued subsequent to the Cease Work Instruction, and whether and to what extent Heartland received a benefit from services Bryk may have provided. The date range ordered should therefore align with what has been ordered in respect of Category 1. In that context I have determined that there shall be an order in the form sought by Heartland in respect of Category 3 save that the date period shall be extended, consistent with what has been ordered for Category 1, to 31 August 2023.

1. Category 4 seeks documents which record or refer to instructions provided by Heartland to Bryk with regard to the Consumer Lending Project. Heartland opposes that category in its entirety. Bryk submits that these documents are relevant consistent with the reasons it gave in respect of Category 1.
2. I accept Heartland's submissions that the scope of this Category, even once amended, is too broad. The category is not confined to any particular staff within Heartland, or indeed even to correspondence between Heartland and Bryk. The instructions given from Heartland to Bryk are particularised in Bryk's claim and evidence is given about the extent of them in the witness statement of Ashley Stuart Wolff, General Manager of Bryk. Therefore Bryk (as would be expected) has access to those instructions in its records, and the instructions themselves need not be discovered. The scope of this category will otherwise pick up documents created by or exchanged between any person or party, referring to any instruction given to Bryk, regardless of its relevance to any issue in dispute in this proceeding. In that context, and in light of the evidence of Mr Johnson as to the number of people involved in the Project within Heartland, I do not consider it would be proportionate, or that the overriding purpose of the CPA will be furthered, for an order to be made for discovery of this category of documents.

1. Category 7 seeks documents which record any decision (or consideration of any decision) to suspend or terminate the Project or Bryk's role in it. Bryk submits that the decision to terminate the Project is a key factual matter and is relevant to all the issues raised in relation to Category 1. Bryk contends that it is entitled to test the propositions put forward by Mr Flood, discussed above, as to the reason for its termination. Heartland relies upon its submissions in relation to Category 1, in response.
2. For the same reasons I gave in respect of Category 1, I accept that documents that refer to or record Heartland's decision to terminate the Project or Bryk's role in it may be relevant. However, I accept Heartland's submission that such documents would be captured by Category 1, for which I have determined that Bryk's broader formulation shall be ordered. To the extent Bryk seeks the documents in this category in order to test propositions advanced by Heartland's witnesses in evidence about the reasons for termination, documents sent, received, created or last modified by those individuals, and others on the Board of Directors and SteerCo, will be captured by Category 1. Any documents that refer to the termination that are not otherwise captured by Category 1 are in my opinion likely to be peripheral to the issues in dispute and therefore discovery of those documents should not be ordered.

1. Category 8 relates to documents and communications in the period of 1 January 2021 and 31 August 2023 recording, constituting or evidencing Heartland's financial provision for the costs of the Consumer Lending Project. Heartland opposes this category. Bryk submits these documents are relevant to whether Heartland's conduct was unconscionable, whether Heartland received a benefit from the services provided, and whether and to what extent Bryk has incurred a loss. Bryk further submits that this evidence will demonstrate whether Heartland was provisioning for payment in respect of the Consumer Lending Project in accordance with the agreements Bryk relies upon in its claim including, for example, in relation to the 'burn rate' that Bryk alleges was agreed to be paid to it under the July 2021 Agreement.
2. I accept Heartland's submission that the documents sought in this category are not relevant to the benefit Bryk alleges Heartland received on the Project, which are otherwise properly captured by Category 12, discussed below. However, I also accept Bryk's submission that documents evidencing financial provision for the costs of the Consumer Lending Project may be relevant to establishing whether Heartland was provisioning for payment consistent with the agreements pleaded by Bryk, which Heartland denies. For those reasons, there shall be an order for discovery in the category sought by Bryk, save that the date range shall be confined to that period of time which relates to Bryk's allegations regarding the July 2021 Agreement and February 2022 Agreement.
3. Having regard to the view I have formed about the relevance of this category of documents, I consider the appropriate date range for this category is the period during which Bryk alleges it was performing the disputed services, from August 2021 to June 2022.

1. By Category 10 Bryk seeks documents recording communications between 1 November 2020 and 31 August 2023 evidencing Heartland's liability or potential liability to Bryk in relation to the Consumer Lending Project. Heartland opposes this category. Bryk alleges that these documents go to whether there was a binding contract, and its scope, whether representations were made to Bryk, whether Heartland's conduct was unconscionable, and whether it received a benefit from the services alleged to have been provided by Bryk.
2. I accept Heartland's submissions that the scope of this category is very broad. It is not confined to Heartland's liability in respect of issues in dispute in this proceeding. As Mr Johnson sets out in his witness statement, it would require a reviewer, beyond the scope of what is to be expected of a proper discovery exercise, to carry out a subjective assessment as to whether a document 'evidences' liability on the part of Heartland.
3. To the extent there are documents which disclose evidence of substance as to liability of Heartland such that they will be critical to the resolution of this dispute, these are documents which in any event ought to be disclosed pursuant to Heartland's ongoing obligation under s 26 of the CPA. I am satisfied that documents responding to this category would otherwise be, at best, peripheral to the issues in dispute in this proceeding and there will be no order in respect of this category.

1. By Category 12 Bryk seeks communications in the period 1 July 2021 to 31 August 2023 referring to or relating to the value of the products, goods and/or services provided by Bryk in relation to the Project. Heartland proposes an alternative formulation for this category, for a slightly shorter timeline (commencing 19 July 2021) and confined to the value of the services allegedly provided in relation to the July 2021 Agreement and February 2022 Agreement.
2. Bryk submits that this category is relevant to its claim for restitution on a quantum meruit and to the benefit obtained by Heartland.
3. Bryk's submissions on this category are confined to its claims against Heartland. I do not understand either party to be submitting that documents in relation to this category are relevant to Heartland's counterclaim. On that basis, it is not clear to me why Bryk considers documents relating to work performed other than under those specific agreements, such as work performed under Work Order Request 2, would be relevant, such that they ought to be discovered. On that basis I am satisfied that the appropriate order is that proposed by Heartland. However, I accept that documents in the weeks leading up to the alleged July 2021 Agreement may be relevant. On that basis the date range to be ordered for that category shall commence on 1 July 2021.

1. The documents sought by Categories 13, 14 and 15 are related. By these categories Bryk seeks documents relating to meetings of the Heartland Board or SteerCo which refer to 'Dependent Projects' (Category 13), documents recording communications referring to the status and/or progress of the Dependent Projects (Category 14), and documents recording communications between Heartland and Oracle in relation to Flexcube, the Oracle product intended to be replaced by way of the Consumer Lending Project (Category 15). The Dependent Projects are described in the witness statement of Mr Flood, in which he gives evidence about the interdependency of the Consumer Lending Project and the Dependent Projects, which drove the need for timely delivery of the Consumer Lending Project. Bryk alleges that these documents have been 'put in play' by way of Heartland's counterclaim.
2. Heartland opposes these categories on the basis of their broad scope and refers to the evidence of Mr Johnson, who deposes in his affidavit to only two of the eight projects being relevant to the Consumer Lending Project.
3. I accept Heartland's submission that these categories are excessively broad and the work involved in making such discovery will be disproportionate in circumstances where there is minimal prospect of any documents being discovered which are relevant to the issues in dispute. Categories 13 to 15 in their terms do not require the discoverable documents to refer to or record the Consumer Lending Platform or any issue in dispute in this proceeding. Accordingly, vast numbers of documents relating to complex projects within Heartland are likely to respond to the categories sought, of which few if any may refer to the Consumer Lending Platform. I accept Heartland's submission that Board and SteerCo documents that relate to the Dependent Projects or Flexcube, to the extent they are relevant to the matters in issue in this proceeding, will be discovered by way of Category 1. I am otherwise satisfied that these categories are not likely to produce documents central to any question between the parties on pleadings, such that they ought to be discovered.

1. For the reasons set out above, there shall be orders for discovery made in the form set out in Annexure A. I have made orders for the parties to provide minutes of proposed consent order to the Court for consideration, having regard to these reasons. As foreshadowed at the hearing, as well as setting out the categories and providing for timing for provision of discovery, those orders should include any proposed order for costs.
2. Neither party has had complete success on the Application. To assist the parties, I foreshadow my preliminary view that an order that costs be reserved seems an appropriate course, in the circumstances. However, I am open to hearing from the parties as to their respective positions and, in the event there remains a dispute about the form of order, including as to costs, the parties will have the opportunity to provide their respective proposed form of order, accompanied by short written submissions limited to two pages, and I will determine the final form of order on the papers.

All Documents sent, received, created or last modified by any member or secretary of any meeting of the Heartland board of directors or Steerco in the period of 1 November 2020 and 31 August 2023 recording or referring to the Project including, without limitation:

(a) all Documents recording meetings of Heartland's board of directors including but not limited to: electronic meeting invitations, agendas, minutes, handwritten notes, information packs, attendance lists, calendar appointments, transcripts or meeting summaries.

(b) all Documents recording the SteerCo meetings including but not limited to: electronic meeting invitations, agendas, minutes, handwritten notes, information packs, attendance lists, calendar appointments, transcripts or meeting summaries.

(a) In relation to the Consumer Lending Project Steerco, SteerCo packs, minutes, agendas, meeting invitations, or transcripts for the period from 1 November 2020 to 31 August 2022; and

(b) (b) In relation to the meetings of Heartland's Board of Directors, Board papers, packs, minutes, agendas, meeting invitations or transcripts which refer to the Consumer Lending Project from 1 November 2020 to 31 August 2022.

All Documents sent, received, created or last modified by any member or secretary of any meeting of the Heartland board of directors or Steerco in the period of 1 November 2020 and 31 August 2023 recording or referring to the Project including, without limitation:

(a) all Documents recording meetings of Heartland's board of directors including but not limited to: electronic meeting invitations, agendas, minutes, handwritten notes, information packs, attendance lists, calendar appointments, transcripts or meeting summaries.

(b) all Documents recording the SteerCo meetings including but not limited to: electronic meeting invitations, agendas, minutes, handwritten notes, information packs, attendance lists, calendar appointments, transcripts or meeting summaries.

All Documents which record or refer to the Request for Proposal dated 17 February 2021 (RFP) for the Project.

Documents which record or refer to the reasons for the decision to engage Bryk in relation to the Project.

Documents created or modified between 1 September 2020 and 8 April 2021 which record or refer to the reasons for the decision to engage Bryk in relation to the Project.

Documents created or modified between 1 September 2020 and 31 August 2023, which record or refer to the reasons for the decision to engage Bryk in relation to the Project.

Documents which record or refer to any instructions provided by Heartland to Bryk with regards to the Project.

Documents dated between 1 April 2022 and 28 June 2022 which refer to or relate to the matters discussed at the in-person workshops held on 28 April 2022 and May 2022.

Documents dated between 1 April 2022 and 28 June 2022 which refer to or record the matters discussed at the in-person workshops held on 28 April 2022 and May 2022.

Documents and Communications dated between 1 February 2022 and 31 August 2023 relating to BRYK delivering or working on a 'Minimum Viable Product' (MVP).

Documents and Communications dated between 1 February 2022 and 31 August 2023 refer to BRYK delivering or working on a 'Minimum Viable Product' (MVP).

Documents which refer to or record any decision (or consideration of any decision) to suspend or terminate the Project or Bryk's role in the Project.

All Documents and Communications in the period of 1 January 2021 and 31 August 2023 recording, constituting or evidencing Heartland's financial provision for the costs of the Project.

All Documents and Communications in the period of August 2021 and June 2022 recording, constituting or evidencing Heartland's financial provision for the costs of the Project.

All Documents in the period of 1 January 2019 and 31 August 2023 recording, constituting or evidencing contractor agreements with the consultants/contractors referred to in the witness statement of Mijung Hwang dated 16 May 2025 regarding services provided to the Project, including Peter Smith.

All Documents recording Communications (internal to Heartland or otherwise) in the period of 1 November 2020 and 31 August 2023 evidencing Heartland's liability or potential liability to Bryk in relation to the Project.

All documents recording Communications (internal to Heartland or otherwise):

(a) between:

1. 19 July 2021 and 25 August 2023 which record or refer to the emails exchanged between Heartland and Bryk between 19 July 2021 and 20 July 2021; and/or
2. 18 February to 22 and 25 August 2023 which record or refer to the emails exchanged between Heartland and Bryk 18 February 2022 to 23 February 2022; and

(b) to which any person occupying the following role(s) at Heartland was a party:

1. Chief Executive Officer, Chief Operating Officer, or other executive officer or member of Heartland's board;
2. Head of Procurement;
3. Head of IT; or
4. Project Manager

All Documents recording Communications in the period of 1 July 2021 and 31 August 2023 (internal to Heartland or otherwise) referring or relating to the value of the products, goods and/or services provided by Bryk in relation to the Project.

All Documents recording Communications in the period of 19 July 2021 to 31 August 2023 (internal to Heartland or otherwise) referring to or relating to the value the 20 July 2021 Services and/or the 23 February 2022 Services allegedly provided by Bryk in relation to the Project.

All Documents recording Communications in the period of 1 July 2021 to 31 August 2023 (internal to Heartland or otherwise) referring to or relating to the value the 20 July 2021 Services and/or the 23 February 2022 Services allegedly provided by Bryk in relation to the Project.

All Documents created or last modified in the period of 1 January 2019 to 31 August 2023 relating to meetings of Heartland's board of directors or SteerCo which refer to the status and/or progress of any of the Dependent Projects, including but not limited to: electronic meeting invitations, agendas, minutes, handwritten notes, information packs, attendance lists, calendar appointments, transcripts or meeting summaries.

All Documents recording Communications sent or received by any members of the Heartland board of directors or SteerCo in the period of 1 November 2020 to 31 August 2023 referring to the status and/or progress of the Dependent Projects.

All Documents recording Communications between employees of Heartland and Oracle in relation to the extension, renewal, upgrade or significant modification of Flexcube in the period of 1 November 2020 to 31 August 2023.

Bryk means the plaintiff and defendant by counterclaim.

Communication has the same meaning as 'electronic communication' as defined in s 3 of the Electronic Transaction (Victoria) Act 2000.

Dependent Projects means projects which are referred to as 'Endgame', 'Whanake', 'Loki', 'Mobile App', 'Livestock, 'Programme Office', 'Tokita 1 - Phase 1' and Tokita - Phase 2', referred to in HBL.100.002.8452 which is referred to at paragraph 128 of the witness statement of Christopher Patrick Francis Flood dated 15 May 2025.

Documents has the same meaning as 'document' as defined in Part 1, Definitions, of the Evidence Act 2008 (Vic).

Flexcube means Heartland's existing Oracle system.

Heartland means the defendant and plaintiff by counterclaim.

MVP means minimum viable product as referred to paragraph 18 of the Statement of Claim filed 25 August 2023.

Project means the project to develop a new online platform to support the operation of Heartland's retail consumer lending business, also referred to as the 'Project' or 'Project Kahu'.

SteerCo means the steering committee which considered the progress of the Project.

[1] Agnello v Heritage Care Pty Ltd; Fotiadis v St Basil's Homes for the Aged in Victoria (No 2) (2023) 72 VR 143, 150-1 [30]-[31].

[2] [2013] HCA 46; (2013) 250 CLR 303, 323 [57] (French CJ, Kiefel, Bell, Gageler and Keane JJ).

[3] [2016] VSC 573, [34] (citations omitted).

[4] See, e.g., the different approaches taken in Lichaa v Boutras [2021] NSWCA 322, [35] (Rein J, Macfarlan and Gleeson JJA agreeing); Australia & New Zealand Banking Group Ltd v Hunter BNZ Finance Ltd [1991] VicRp 79; [1991] 2 VR 407, 415 (Fullagar J, agreeing with Murphy and Vincent JJ); Heffernan v Hayes [1899] VicLawRp 106; (1899) 25 VLR 156 (Madden CJ, Holroyd and A'Beckett JJ).