Westpac Banking Corporation v Studdy

REASONS FOR JUDGMENT 1 This is an application by the applicant, Westpac Banking Corporation ('Westpac'), to further amend its amended statement of claim. It arises in circumstances of some complexity. The centre of that complexity is a deed of guarantee which was executed by the first respondent, Mr Edward Studdy, on 17 May 2010, under which he agreed to guarantee the debts of a related company to him called Auscot ('the deed of guarantee'). Auscot was itself liable under an antecedent arrangement to another corporation incorporated in the British Virgin Islands called Maud Limited ('Maud'). Under that arrangement Auscot owed Maud initially a sum of $65 million. That arrangement arose from a meeting which took place in Hong Kong between representatives of Maud and representatives, including Mr Studdy, of Auscot. 2 Under the agreement which was reached on that day, and which was recorded in a file note dated 28 February 2007, Auscot agreed to pay Maud the sum of $65 million in return for Maud obtaining for Auscot the status of being an 'approved vendor' for the purposes of a mining venture being conducted in Madagascar known as the Ambatovy Minerals S.A. Project ('the Ambatovy Project'). The Ambatovy Project was a large mining venture designed to extract nickel and cobalt from the ground, and was being conducted through a joint venture between three large corporations, one of which was SNC Lavalin. 3 Mr Studdy's companies are in the business of providing steel pipes, and it was his expectation that he would be given or awarded the contract for steel piping for the Ambatovy Project, which the evidence suggested included a very long pipe. Mr Studdy anticipated that the project would deliver to his companies sales perhaps in the order of $500 million, and, in that regard, one might compare the proposed fee of $65 million. In any event, the combined operation of the agreement reached in Hong Kong between Auscot on the one hand, and Maud on the other, and the deed of guarantee entered into by Mr Studdy on 17 May 2010 of Auscot's obligations to Maud, is that from 17 May 2010, taking into account certain interest charges, Mr Studdy has been indebted to Maud for a sum in excess of $70 million. 4 Unrelated to those events was the occurrence in late 2008 of the global financial crisis, which, for reasons which it is not necessary to set out at this stage, brought Mr Studdy's various steel pipe and other steel product related interests into a situation of financial stress. The end point of that stress was Mr Studdy finding himself embarrassed in a financial sense, and, on 12 June 2012, entering into a personal insolvency agreement ('the agreement') under Part X of the Bankruptcy Act 1968 (Cth) ('the Act'). That deed was the subject of a vote by creditors at a meeting of creditors held at the offices of the controlling trustee in Hunter Street in Sydney on that day. 5 There was debate amongst the creditors as to whether the agreement should be entered into. One reason for that debate was that, under its terms, a company related to Mr Studdy would put up as a pool for the creditors the sum of $250,000 and they would be required to take their share of that. The creditors who were admitted to vote on the question of whether the deed should be adopted amounted to approximately $149 million, with the result that if the agreement were adopted, the yield to each creditor would be .001 cents in the dollar. 6 One of the creditors who voted in favour of the adoption of the deed was Maud, claiming through the operation of the deed of guarantee and the underlying agreement between Maud and Auscot. One of the creditors who voted against adoption of the agreement was the present applicant, Westpac. In the events which occurred a majority of creditors by value, including the very substantial claim of Maud, voted in favour of the adoption of the agreement and it took effect on 12 June 2012. Westpac has now applied in this Court to set aside the agreement under s 222 of the Act. 7 Its original claim was only twofold. First, it concentrated on the fact that the amount which participating creditors would receive was a dividend of approximately .001 cents per dollar and was therefore unreasonable and not calculated to benefit the creditors generally, and the second ground which was articulated was that there had been inadequate time to investigate the circumstances surrounding the affairs of some of Mr Studdy's companies. The matter was originally called on for trial on 29 May this year, at which time a debate took place between the parties as to whether Westpac was entitled to make the allegation that the deed of guarantee and, indeed, the transaction involving Maud altogether, was a sham. 8 That proposition had been articulated by Westpac in particulars provided to Mr Studdy's representatives, but it did not find itself reflected in the actual pleading which was before the Court. When objection was taken on that ground, the bank applied to amend its statement of claim to make plain that it was alleging that the Maud transaction was a sham. I acceded to that application, but also to Mr Studdy's application that I adjourn the proceedings, he apparently not being then ready to meet such a case. The proceeding was then adjourned for hearing to yesterday, 24 June 2013. 9 Mr Studdy has never suggested, either to the controlling trustee during the course of his investigations, or in the various procedural steps which have taken place between the parties in the lead up to this trial, that he had entered into the deed of guarantee as a result of the exercise upon him of duress at the meeting at which he agreed to give that guarantee, or that he suspected that the $65 million which he, through the vehicle of Auscot, had agreed to pay Maud was, in fact, suspected of having been a bribe to certain undisclosed employees of SNC Lavalin. 10 There is an explanation for this, I think, however. The manner in which Mr Studdy's representatives have conducted his defence of these proceedings thus far has turned very much upon a particular reading of s 222(1)(d) of the Act. That provision empowers the court on the application of a creditor to set aside a personal insolvency agreement if it is satisfied that 'the terms of the agreement are unreasonable or are not calculated to benefit the creditors generally'. Westpac's current form of pleading seems to rely in terms upon that subsection, and does not expressly rely upon the terms of s 222(1)(e), which also authorises the Court to set aside a personal insolvency agreement if it is satisfied that 'for any other reason, the agreement ought to be set aside'. 11 The contention when the matter was first called on for trial by Mr Robinson of senior counsel, who appeared at that time with Mr Golledge, was that an application under section 222(1)(d) brought into existence an enquiry which was limited to a focus upon the operation of the terms of the deed itself. Enquiries, therefore, into whether, for example, the Maud transaction was a sham, were irrelevant to that exercise. There has been, throughout the case so far, a debate between the parties as to whether that is the proper construction of s 222(1)(d). 12 On Westpac's behalf, Mr McLure drew my attention to this Court's decision in Westpac Banking Corporation v Hingston (No 2) (2010) 117 ALD 552, and in particular to a passage appearing in the reasons of Cowdroy J at paragraphs [74] to [82]. Mr McLure submitted that that decision and the authorities set out in those paragraphs favoured the view that the jurisdiction under s 222(1)(d) was sufficiently broad to encompass an enquiry or examination of the circumstances giving rise to a debt upon which a creditor relies at the creditor's meeting by which the personal insolvency agreement was adopted. 13 Mr Robinson disputed that that was a correct interpretation of s 222(1)(d). He submitted that the only way in which the circumstances of the Maud transaction can be examined in a proceeding such as this is through the vector of s 222(1)(e) - that is, the 'for any other reason' ground - and he notes that, at least in the current form of the pleading, that claim is not pursued by Westpac. It was on the basis of that narrow interpretation of Westpac's claim by Mr Studdy's representatives that it may well explain why no evidence was every brought forward from Mr Studdy going to the circumstances under which he came to enter into the deed of guarantee. It simply had, on that view of s 222(1)(d), no relevance. Despite that, the deed of guarantee has a natural tendency in the observer to invite enquiry, or at least curiosity. Looked at on its face, it is difficult, without knowing more, to understand why a person would execute a document whose only effect was immediately to expose him to a liability in excess of $70 million. 14 Unless he had good reason to do so, from Mr Studdy's point of view, the absence of any explanation, at least when the trial commenced, as to why he would do such a thing is one which, unless Mr Robinson's submissions about s 222(1)(d) ultimately prove correct, may be liable to cause one to be curious as to what was taking place. Nevertheless, I accept that framed in the way Mr Studdy's defence was, there is good, or at least sufficient, reasons to understand why that evidence was not forthcoming from him at the time. 15 Yesterday, however, events took an unexpected turn. During the course of Mr Studdy's evidence-in-chief, he gave evidence which indeed touch upon his rationale for entering into the deed of guarantee. Initially, that evidence was very limited. Mr Robinson asked Mr Studdy why it was he committed himself to guarantee the indebtedness of Auscot at the time. On asking what the reason was, Mr Robinson received the following answer: I was requested, and more likely forced to. 16 I then indicated to Mr Robinson that if that was the state of the evidence on the topic, it would not seem to me to be entirely satisfactory, which very properly led him to ask some further questions, then eliciting evidence from Mr Studdy that one of the reasons he executed the deed was: I was partially threatened. 17 Mr Studdy also deposed that he felt it was conveyed to him that it was in his best interest to execute the deed. The following exchange then took place: And when you say you were forced to sign it, are we talking about - can you tell me what was motivating you to sign it at that time? --- Threats along the lines that it would be in my best interest to sign. And you know what the reference was to? --- I don't understand the question. Your best interests? Were they your financial interests, your health interests? --- No. My - - - Your health interests? - -- Yes, I think that's probably more appropriate. 18 Mr McLure subsequently commenced his cross-examination and elicited from Mr Studdy evidence which suggested that Mr Studdy at least suspected that the ultimate destination of the $65 million may well have been employees of SNC Lavalin. For example, the following exchange took place: All right. Now, you told his Honour earlier that - well, I will ask it differently. Did you suspect that the $65 million fee that was to be paid to Maud might be passed on to someone associated with either SNC Lavalin or the Ambatovy Project? --- Did I give that consideration is that your question? Did you suspect that? --- I thought it might be the case. It could have been but I did not ask Mr Sum, who he represented or those people what have you. I intentionally did not ask that. But did it occur to you - did those matters occur to you at the time you caused Auscot to enter the agreement that is recorded in the document before you? --- When you say did that occur to me. The matters you've just mentioned is it you thought it might have been the case that some or all of the $65 million introduction fee was going to be passed onto someone associated with SNC Lavalin or the Ambatovy Project? --- I thought there was a distinct possibility. And did that distinct possibly occur to you at the time you caused Auscot to enter into the agreement that's referred to in the document before you? --- I think I had given it consideration perhaps before during and afterwards. I can't specifically say that I gave that any more or any less consideration on that particular date or the date of the document you're referring to. 19 For the reasons I have already mentioned, evidence to that effect had never been exchanged between the parties, and, so I was told from the bar table, such a contention has not previously been advanced by Mr Studdy. 20 Westpac now seeks to amend its case in relation to the Maud transaction by adding a claim that the deed of guarantee was procured in circumstances amounting to duress at common law and also that the transaction disclosed is relevantly illegal. The form of the pleading proposed, subject to one matter to which I will return, ultimately took the form of Exhibit 17 in these proceedings. 21 The amendments were to be to paragraph 13 and involve the insertion of new subparagraphs (r) through to (dd). These are as follows: Maud Ltd - duress (in the alternative to the matters pleaded in (c) - (g) above) r. Paragraph (d) above is repeated; s. Prior to signing the deed of loan and guarantee dated 17 May 2010 (Guarantee), an officer of Maud Mr Dominic Sum and another person who was representing Maud or was an officer of Maud, threatened Mr Studdy with physical harm if he did not sign the Guarantee; Particulars i. The threat was conveyed to Mr Studdy by Mr Sum and/or the other person during a meeting between them in Hong Kong sometime on or before 17 May 2010. t. The threat conveyed to Mr Studdy was wrongful or alternatively unlawful and constituted illegitimate pressure upon him to sign the Guarantee; u. Mr Studdy signed the Guarantee as a consequence of the illegitimate pressure applied by the threat; v. Maud gave no consideration for Mr Studdy's promise in the Guarantee to pay on demand Auscot's purported liability to Maud; w. A trustee in bankruptcy should examine whether Maud's proof of debt could be rejected on the ground that Mr Studdy would be entitled to rescind the Guarantee, further or alternatively that Maud would not be entitled to enforce the Guarantee, on the basis that Mr Studdy's execution of it was procured by duress. Maud Ltd - illegality (in the alternative to the matters pleaded in (c) - (g) and (r) - (w) above) x. Paragraphs (c) and (d) above are repeated; y. The purpose of the contract entered into on 28 February 2007 (28 February Contract) was to enable Maud to offer officers of SNC-Lavalin a secret financial incentive to: i. grant Auscot approved vendor status; and/or ii. accept or recommend the acceptance of a tender by Auscot to supply goods to the Ambatovy Minerals project in Madagascar. z. The offering of a secret financial incentive to officers of SNC-Lavalin for the purposes referred to above would be to knowingly and unlawfully assist those officers with a dishonest and fraudulent breach of their fiduciary duty to their employer; aa. Mr Studdy knew the matters referred to in paragraphs (y) and (z) above; Particulars of knowledge i. Mr Studdy actually knew the matters referred to in paragraphs (y) and (z) above; ii. alternatively, Mr Studdy wilfully shut his eyes to the matters referred to in paragraphs (y) and (z) above which were obvious to him; iii. alternatively, Mr Studdy wilfully and recklessly failed to make such inquiries of how Mr Sum and Maud proposed to assist Auscot with obtaining approved vendor status with SNC-Lavalin, being inquiries an honest and reasonable person would make; iv. alternatively, Mr Studdy's knowledge that under the terms of the 28 February Contract, Maud would be paid a fee of $65 million for introducing Auscot to SNC-Lavalin and Auscot obtaining approved vendor status, would indicate the matters referred to in paragraphs (y) and (z) above to an honest and reasonable person. bb. It was a term of the 28 February Contract that Mr Studdy would guarantee Auscot's liability under that contract; cc. Further or in the alternative to the matter referred to in paragraph (bb) above, the purpose of the Guarantee was to permit Maud to enforce Auscot's liability under the 28 February Contract against Mr Studdy; dd. A trustee in bankruptcy should examine whether Maud's proof of debt could be rejected on the ground that the Guarantee is void for illegality. 22 In addition to those amendments, during the course of argument, Westpac also sought to amend paragraph 13 to include a claim pursuant to s 222(1)(e). The actual text of that proposed amendment was not formulated during the course of argument, but it is apparent that a minor reworking of paragraph 13 would suffice. The mere fact that it was not, and still is not articulated, does not seem to me, at least in the present circumstances, to be of any great moment since there can be little doubt about what it will say if it be granted. 23 This application to amend understandably was opposed by Mr Studdy's representatives. 24 My first conclusion is that the proposed amendments are substantive and not frivolous. So far as the duress claim is concerned, I did not apprehend it really to be suggested that the manner in which it was pleaded was not appropriate, nor that the evidence which was procured yesterday would not, at least in principle, be capable of supporting such an amendment. That is, I accept the evidence that Mr Studdy gave that those at the meeting at which it was suggested he sign the deed of guarantee had made threats to him which he understood as potentially affecting his health. Such threats would be capable of amounting to a case of duress of common law. 25 Insofar as the case of the illegality was concerned, Mr McLure contended that, and his pleading reflected this contention, the contract underlying the deed of guarantee by which Auscot had agreed to pay Maud the $65 million was a contract which was contrary to public policy. He relied upon the proposition that it appeared to be a contract to procure unlawful conduct. He submitted on the basis of a passage in N Seddon, R Bigwood and M Ellinghaus, Cheshire & Fifoot's Law of Contract (LexisNexis Butterworths, 10th ed, 2012) at paragraph 18.21, that: A contract involving conduct that is not prohibited but merely subject to civil liability could still be regarded as illegal. 26 Mr McLure further drew my attention to footnote 132, where it was said '[f]or example a breach of fiduciary duty' could be unlawful conduct within the meaning of the principle. At least at the level of a pleading question, it seems to me that I should proceed on the basis that a contract to induce a breach of fiduciary duty is not enforceable. There are, no doubt, as Mr Robinson pointed out, potentially some difficulties in pursuing a case of that nature, at least where that question directly arose because, at least so far as the facts in this case disclose, the identity of the persons who are alleged to have breached their fiduciary duties are not known. This is because they are the undisclosed employees of SNC Lavalin. 27 However, the question which arises on the present application is not whether those persons did breach their fiduciary duty to SNC Lavalin, or indeed, even whether Mr Studdy participated with the requisite degree of knowledge in those breaches of fiduciary duty. It is instead simply the question of whether the requirements of s 222(1) have been complied with. That being so, for the reasons mentioned by Cowdroy J in Westpac Banking Corporation v Hingston (No 2), the question is really whether it is a matter which will warrant investigation. And that gives rise at the level of a pleading to a somewhat lower standard than the tenor Mr Robinson's submissions assume. 28 I therefore accept, and leaving aside the proposed amendment in relation to the addition of s 222(1)(e), that the proposed amendments are proper. I also think that they have been made in a timely fashion. Until yesterday afternoon when Mr Studdy first gave the evidence in relation to the threats which were made to him with respect to the execution of the deed of guarantee, and his suspicions about the motivations of those to whom Auscot was paying the $65 million fee, there had never been any such contention to which Westpac could possibly have responded, or indeed made any allegation on the basis of. 29 It is, I accept, as Mr Robinson put, quite inconsistent with Westpac's current case that the Maud transaction was a sham. Until yesterday, Westpac was confronted with the execution of a deed of guarantee which largely appeared to be mysterious. As a result of Mr Studdy's evidence the mystery of that transaction has much abated. The evidence now would suggest, perhaps strongly, that the transaction was not a sham in the sense it is used in legal discourse, that is, an arrangement not intended to take effect in accordance with its terms, but rather, a transaction entered into precisely to procure employees of SNC Lavalin to give work to Mr Studdy's companies. 30 It made sense because the payment of the $65 million fee would in a sense, 'procure the deal'. In one sense, the question of whether the $65 million fee was paid to procure the deal was already in play in this litigation. The documentary evidence which was put forward included a file note of the meeting of 28 February 2007. That file note suggested that the $65 million fee was indeed a fee paid to Maud to assist in procuring favoured vendor status for Auscot. But the evidence which has now been given goes a little bit further than that file note does because it provides, for the first time, some commercial rationale for understanding why a fee of such significant magnitude would be paid, and why Mr Studdy might enter into such a deed of guarantee. It would, so it seems to me, be unfair now to allow Mr Studdy to advance for the first time a case along the lines that the $65 million fee was paid to secure the cooperation of employees of SNC Lavalin in procuring contracts or a case that he had been threatened into executing the deed of guarantee without allowing Westpac to respond in a substantive fashion to this allegation. 31 It is true that I have already permitted Westpac to amend its statement of claim once, and it is also true that that amendment resulted in the adjournment of these proceedings. But in the current circumstance, it seems to me that the position of Westpac is blameless. It was not to be anticipated by Westpac that evidence of the kind which was elicited yesterday would be elicited. The principle, therefore, so it seems to me, is that Westpac has an almost unanswerable entitlement to amend its proceedings now to meet this contention. 32 However, Mr Studdy submits that he will suffer, effectively, irremediable prejudice if I allow the amendment. Insofar as the Maud transaction itself is concerned, he says there are obviously several lines of enquiry which would need to be pursued in the responsible preparation to meet the case now proposed by Westpac. Specifically, he draws attention to the events surrounding the meeting of 28 February 2007, and in particular, the attendance at that meeting of a Mr Dominic Sum who appears to have been one of the principal minds behind Maud. 33 He says, not without some force, that enquiries about the two claims now proposed by Westpac would naturally commence with enquiries of Mr Sum. An affidavit was tendered by Westpac on the application, prepared by Mr Studdy's solicitors, which indicated that attempts on their part to make contact with Mr Sum had resulted only in silence. That formed the basis of a submission that the prejudice which might be said to flow from the need to investigate the position of Mr Sum might be seen to be at the lower end. 34 I accept that Mr Sum is unlikely to be cooperative, but I do not accept that he is necessarily impossible to call, or that I should, therefore, discount the value to Mr Studdy of the opportunity, or at least the right to exercise the opportunity, to make that enquiry. It is relevant, though, in viewing that matter that another person who was at the meeting apart from Mr Studdy was a Mr Richard Hill, who, as I understand it, is to be called to give evidence tomorrow, 26 June 2013. It is not the case, therefore, that the circumstances of the meeting are completely impossible to investigate by Mr Studdy's camp, and, of course, there is the fact that Mr Studdy himself was present at the meeting. 35 That said, I do accept that the prejudice pointed to in relation to the investigations which would need to be made about that meeting are existent, although I rate them at the lower end for the reasons I have given. Mr Robinson also submitted that in meeting the suggestion that the Maud $65 million fee was a bribe, there were very many factual enquiries which might need to be looked at. It is obviously, at this stage, an open question as to whether Mr Studdy's suspicions that the $65 million fee was to be paid to SNC Lavalin employees as a bribe were correct. 36 It could be that Mr Studdy's suspicions were wrong. For that reason, Mr Robinson submits it would be a relevant part of Mr Studdy's defence to investigate just whether there was ever such a transaction and whether his suspicions were correct. I am not sure that this is necessarily correct because of the more circumscribed nature of the inquiry under s 222, which is not whether the transaction constituted a bribe, but whether a trustee in bankruptcy might reasonably wish to investigate that issue. I do, nevertheless, accept that is a matter which could be looked at and in the ordinary course of litigation could reasonably be looked at. 37 Those considerations would impel me to adjourn the proceedings if Mr Robinson sought to have that happen. In many cases, the fact that an amendment application will inevitably result in an adjournment, can be a basis for refusing the amendment to avoid dislocation in the orderly conduct of litigation and the further incurring of cost and expense. This is not a case, subject to one matter to which I will return, where, however, I would accept that the granting of an adjournment ought to have that effect. As I have indicated, Westpac's position in relation to this amendment application is blameless. It brings a substantive case at the earliest available opportunity. 38 If there is any reason why the application is being brought now, it is because of the forensic decision made by Mr Studdy's representatives not to include evidence going to the rationality of his entry into the deed of guarantee. I do not make a criticism of Mr Studdy's camp in that regard. It was a corollary of a forensic choice made to pursue the case on the basis of a narrow, perhaps correct, reading of s 222(1)(d). Accordingly, in an ordinary case what I would do is permit Westpac to amend to raise for duress and illegality claims, and then grant to Mr Robinson the adjournment to which he would, it seems to me, inevitably, be entitled. 39 The difficulty in this case is that Mr Studdy does not wish to apply for an adjournment. The reason for this is that his funds to conduct the litigation are nearing an end, and if the matter is adjourned, he will need to dispense with the services of his legal representatives. He finds himself, therefore, confronted with something of a Hobson's choice. He can have a trial without a full factual investigation of the circumstances surrounding the meeting in Hong Kong in February 2007, and without an investigation into what I shall call the 'bribe allegations'. 40 If he does that he suffers the procedural difficulty that his case may be conducted without full knowledge of the circumstances or full enquiries having been made. On the other hand, he may opt to make those enquiries; in which case, he must dispense with his lawyers. This is not a choice which anyone would wish upon another person. It seems to me, however, that the choice of which of those two alternatives Mr Studdy is to embrace is his choice, and I do not think it would be appropriate for me to allow his choice to dictate the outcome of the amendment application. 41 I will offer Mr Studdy a further opportunity to apply for an adjournment, but if that choice is not made, one needs to be very clear that the procedural disadvantage which will then accrue to Mr Studdy, accrues to him not by reason of my having granted the amendment application, but by his decision not to apply for an adjournment. Obviously this is less than satisfactory but it seems to me it is the only just and fair way of balancing the interests of the parties. I will, therefore, indicate that I will grant leave to Westpac to add the duress and illegality claims contained in its proposed pleading in the form of Exhibit 17 subject to the amendments to which I refer. 42 There then needs to be determined the question of whether Westpac should have leave also to add a claim now under s222(1)(e). Mr Studdy's position in relation to this litigation has always been one of considerable sophistication, and he has pursued, as I have already indicated, his preparations on the basis of a narrow reading of s 222(1)(d). On that basis, he has taken the choice, understandably, I think, that he does not need to engage with, in any detailed way, the Maud transactions. 43 The superaddition by Westpac of a claim now under s 222(1)(e) has the effect of depriving that forensic endeavour of its utility. I do not think, however, that I would accept that it can be said that Mr Studdy has decided not to meet a case involving the Maud transactions, or to put it another, an investigation as to whether the Maud arrangements are either void, voidable or in the nature of a sham. Rather, what Mr Studdy's representatives have done is to take a risk that ultimately they will be vindicated in their construction of s 222(1)(d). 44 If, ultimately, they turn out to be incorrect about that, then they will become exposed to an investigation into the nature and quality of the various Maud transactions. That has always been an attendant risk in this litigation and a risk Mr Studdy was willing to run. It is not the case that he was never going to meet such a case. It was simply a situation where he hoped not to. It seems to me in those circumstances that the addition of a claim under s 222(1)(e) does not create a procedural unfairness. It simply materialises a risk that Mr Studdy was always willing to run the risk of. For those reasons, and subject to appropriate wording, I will grant leave to Westpac to add a claim under s 222(1)(e). 45 After these reasons were orally given on 25 June 2013, Mr Robinson immediately applied to me to recall my conclusion in [43] - [44]. He did so on the basis that once s 222(1)(e) was added Mr Studdy had lost the benefit of his defence in s 222(1)(d). If Westpac had raised s 222(1)(e) earlier the case might not have been defended. I refused that application on the basis that I saw nothing incorrect in my previous reasoning. The extent of the prejudice caused to Mr Studdy in reliance on Westpac's initial limitation of its defence to s 222(1)(d) may be a matter going to costs or maybe - I make no comment one way or the other - an estoppel defence to s 222(1)(e). I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.