HENNAH & ORS v WESTPAC BANKING CORPORATION & OR [2022] NZHC 1526

HENNAH & ORS v WESTPAC BANKING CORPORATION & OR [2022] NZHC 1526 [30 June 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-002526[2022] NZHC 1526BETWEEN GEOFFREY MAURICE HENNAH andCHERYL ELLEN HENNAH as trustees ofthe BEAULY TRUSTFirst PlaintiffsGEOFFREY MAURICE HENNAHSecond PlaintiffGEOFFREY MAURICE HENNAH andCHERYL ELLEN HENNAH (INPARTNERSHIP)Third PlaintiffsAND WESTPAC BANKING CORPORATIONFirst DefendantWESTPAC BANK NEW ZEALANDLIMITEDSecond DefendantHearing: 1 June 2022Appearances: E L Smith for PlaintiffsB J Upton and L B Harrison for DefendantsJudgment: 30 June 2022JUDGMENT OF ASSOCIATE JUDGE P J ANDREWThis judgment was delivered by Associate Judge Andrewon 30 June 2022 at 3.00 pmpursuant to r 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..Introduction[1] Mr and Mrs Hennah, in their capacity as trustees and business partners, werepart of the Hennah group. The Hennah group traded in farming and rural commercialactivities in Hawkes Bay.[2] The Hennahs, in those dual capacities, sue the two defendant Westpac entities1for alleged misleading and deceptive conduct in the course of selling and managingthe financial products known as interest rate swaps.2 Entities within the Hennah grouphad entered into the swaps with Westpac in 2008.[3] The plaintiffs claim that the first defendant, Westpac Banking Corporation,3provided financial advice to them as part of the Hennah group. It is said that the scopeof the duties owed by WBC is determined by the provisions of the Securities MarketsAct 1998 and the Financial Advisers Act 2008.[4] In 2015, the Commerce Commission concluded a settlement with Westpac inrelation to the marketing, promotion and sale of interest rate swaps to rural customersbetween 2005 and 2012.[5] There are three interlocutory applications for determination:(a) Application by the defendants for security for costs;(b) Application by the defendants for further particulars;(c) Costs in relation to Mr Hennah's discontinuance as second plaintiff inhis personal capacity.1 Westpac.2 An interest rate swap is a financial derivative which is used by borrowers to hedge the interest raterisk payable on a loan. See Bushline Trustees Ltd v ANZ Bank New Zealand Ltd [2017] NZHC2520 at [45]–[51]. Edwards J noted that the swap transaction is separate and distinct from theloan transaction. But the term "swaps" is sometimes used to refer to the swap and loan transactioncombined.3 WBC.Factual background[6] The proceedings were issued on 22 December 2020. Mr Hennah was thesecond plaintiff at that time.[7] The proceedings arise out of the entry by the Beauly Trust into loans in April2008 with Westpac Bank NZ Ltd4 and a related interest rate swap arrangement withWBC in (initially) May 2008 and again (by way of restructure) in November 2008.[8] The Hennah Partnership was not a party to any of these transactions, but asnoted, claims to have been part of the Hennah group farm operation. The partnershipsays that it owned livestock and provided feed and winter grazing.[9] G M Hennah Ltd (the farm management company) also said to be part of theHennah group, was another (less substantial) borrower. It is not a plaintiff. It wasstruck off the Register of Companies in 2014. An application to this Court byMr Hennah that it be reinstated was rejected by Davison J in 2020.5[10] Mr Hennah is a person common to the Beauly Trust, Hennah Partnership andG M Hennah Ltd. He was adjudicated bankrupt in March 2013 and discharged frombankruptcy in April 2016.[11] The defendants accept that the swap arrangements at issue did not "admittedly"work well for the Beauly Trust. A few months after the November 2008 restructure,there was a sharp drop in wholesale interest rates. This led to an unexpectedly largedivergence between the swap rate (which Beauly Trust was paying and had fixed fora three-year term) and the rate that WBC was paying. In the period mid-2009 to early2011, therefore, the Beauly Trust paid more interest on its borrowing than it mightotherwise have, had it been on a simple fixed/floating loan type arrangement (i.e. withno swaps).4 WNZL.5 Hennah v Registrar of Companies [2020] NZHC 1232. That judgment contains helpful analysisof the broader context to the litigation.[12] The defendants also accept that there were features of the swaps which workedagainst Beauly Trust. Those included terms which (with break costs) made it tooexpensive to cancel and there was an ability by WBC to charge a higher risk marginas the lending position deteriorated.[13] Westpac says it was required to extend more credit and eventually receiverswere appointed for G M Hennah Ltd. After a farm sale in 2012 by the receivers,Westpac says it recorded a loss on the borrowing of circa $7.35m.[14] The Commerce Commission investigation of Westpac and other banks in theperiod 2013 to 2015 looked into allegations of mis-selling of interest rate swapproducts. The public settlement between Westpac and the Commerce Commissioninvolved an acceptance by Westpac that it had engaged in certain conduct that waslikely to mislead or deceive some customers by representing that their swaparrangements fixed the all-up cost of their borrowing, when in fact the margins on theloans underpinning their swaps could increase. Westpac did not accept that this hadactually caused losses for any of its customers.[15] Westpac further says that it was agreed between it and the CommerceCommission that the Beauly Trust (and G M Hennah Ltd) were not entitled to anypayment because Westpac had already written-off a significantly greater amount of$7,348,881, as compared to the reasonable approximation of the additional borrowingcosts to the Beauly Trust of $394,308.[16] The second amended statement of claim of October 2021 contains three causesof action: unconscionable conduct and bargaining amounting to equitable fraud,deceptive and misleading conduct impacting upon the Partnership, and breach offiduciary duty.Relevant legal principles – security for costs[17] Rule 5.45 of the High Court Rules 20166 provides:6 HCR.5.45 Order for security of costs(1) Subclause (2) applies if a Judge is satisfied, on the application of adefendant, –(a) that a plaintiff –(i) is resident out of New Zealand; or(ii) is a corporation incorporated outside New Zealand; or(iii) is a subsidiary (within the meaning of section 5 of theCompanies Act 1993) of a corporation incorporated outsideNew Zealand; or(b) that there is reason to believe that a plaintiff will be unable to pay thecosts of the defendant if the plaintiff is unsuccessful in the plaintiff'sproceeding.(2) A Judge may, if the Judge thinks it is just in all the circumstances, orderthe giving of security for costs.(3) An order under subclause (2) –(a) requires the plaintiff or plaintiffs against whom the order is made togive security for costs as directed for a sum that the Judge considerssufficient –(i) by paying that sum into court; or(ii) by giving, to the satisfaction of the Judge or the Registrar,security for that sum; and(b) may stay the proceeding until the sum is paid or the security given.[18] Once the threshold in r 5.45(1) is met, whether to grant security and if so, thequantum, are discretionary matters. A broad overall assessment, having regard to thesituation of the parties and the nature of the proceeding is required.7 The discretion isnot to be fettered by "constructing principles" from the facts of previous cases.8[19] The general approach is to balance two competing interests – "the defendant'sinterest in being protected from a barren costs order and the plaintiff's right of accessto the Court."97 Hamilton v Papakura District Council (1997) 11 PRNZ 333 (HC) at 335.8 A S McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA) at [13] and [14].9 Clear White Investments Ltd v Otis Trustee Ltd [2016] NZHC 2837 at [4].[20] It is a factor in favour of ordering security where a prima facie case can beestablished that the plaintiff's claim is unmeritorious. A security is more likely to beordered, the less apparently meritorious a case is.10[21] In Highgate on Broadway Ltd v Devine, Kós J held, "access to justice is anessential human right." His Honour noted:11The cost of exercising that right is the payment of costs in the event of failure.The right of a successful defendant to costs in that event is arguablysubordinate to the plaintiff's right to be heard. Strong social policyconsiderations favour the use of Courts as an accessible forum for theresolution of disputes and grievances of almost all kinds.Analysis and decision – security for costs[22] The first issue to address is whether the jurisdictional threshold set out in HCRr 5.45(1) has been met – i.e. reason to believe that the plaintiffs will be unable to paythe costs of the defendants if the plaintiffs are unsuccessful.[23] The plaintiffs have chosen not to put a great deal of relevant financialinformation before the Court. Mr Hennah has made some oblique reference toMrs Hennah's "enviable" salary, but no details have been provided. It is clear fromthe substance of the case and the affidavits filed that the Hennah's position is that, asa result of the alleged conduct of the defendants, the subject of these proceedings, theyare essentially in very strained financial circumstances. The Trust and the Partnershiphave no assets or income. This is an appropriate case to draw an adverse inference.12I find that the impecunious threshold is made out.[24] The essential issue to address is whether, as a matter of discretion, securityshould be ordered now, and if so, how much. The plaintiffs seek to have the questionof security deferred until after discovery.[25] I now address each of the relevant factors identified by Kós J in Highgate onBroadway Ltd v Devine. Kós J held that affirmative answers to the following enquiries10 Highgate on Broadway Ltd v Devine [2012] NZHC 2288, [2013] NZAR 1017 at [22](c).11 Highgate on Broadway Ltd v Devine, above n 10, at [23](b).12 Arnold v Fairfax New Zealand Ltd [2017] NZHC 1757 at [9].will tend in favour of an order against impecunious plaintiffs.13 The overridingconsideration is to balance the respective interests of the parties:14(a) Is the plaintiff a nominal one? When a plaintiff is "nominal", so that itis in effect representing the interests of others who will thus be sparedexposure to costs, it may be appropriate to make an order for security.Westpac contends that the plaintiffs are nominal. They submit that theTrust and Partnership have no assets or income. They also rely uponthe statement in Mr Hennah's affidavit that the plaintiffs have financialsupport from friends, family and business associates who are keen tosee them "succeed in the litigation". I reject Westpac's submission; theplaintiffs are not nominal in the sense that this principle contemplates.The plaintiffs are very much representing their own interests. I alsonote that as trustees and partners they will be personally liable for anycosts award. There is no real evidence here of any third-party funderwho might benefit from any success by the plaintiffs in the litigationand who is the driving force behind the claim.(b) Is there evidence of the plaintiffs disposing of assets to avoid meetingan adverse costs order? There is no evidence in this case.(c) Are the plaintiffs' substantive claims prima facie unmeritorious? MsSmith, for the plaintiffs, accepted that the claims are novel andcomplex. Westpac does not submit that the plaintiffs' claims are whollyunmeritorious; though it does contend that there are some formidableobstacles for the plaintiffs to overcome. I agree. The claims are ofcourse historic; the events at issue occurred in 2008 (approximately 14years ago). The plaintiffs' pleading relies heavily on allegations ofmisleading and deceptive conduct, but they disavow any reliance on s 9of the Fair Trading Act 1986.13 Highgate on Broadway Ltd v Devine, above n 10, at [22].14 Highgate on Broadway Ltd v Devine, above n 10, at [24(c)].The plaintiffs allege unconscionable conduct amounting to equitablefraud. They rely upon the Supreme Court case Gustav & Co vMcLachlan Ltd.15 There will again be difficulties for the plaintiffs inestablishing such a claim. There is evidence suggesting that Mr Hennahwas an experienced businessperson and had the assistance of a trusteesolicitor. An experienced accountant then replaced the trustee upon hisdeath. There is also evidence to suggest that at the time Mr Hennah hadsome appreciation of the risk associated with interest rate swaps.Ultimately of course, these are trial issues.The plaintiffs may also have considerable difficulty in establishing anyloss. The largest quantum of damages sought is by the Partnership,namely some $17.5m claimed. The Partnership was not a counter-partyto the swap, nor a Westpac customer. However, it claims the most. Thestock and machinery belonging to the Partnership was sold in thereceivership and Westpac says that that was the receiver's decision,therefore complaints should be directed to them, rather than Westpac.Furthermore, the Partnership losses appear to be premised on lostrevenue; Westpac says that lost revenue cannot be claimed, only a lossof profit.Westpac further contends in reliance upon a report that it commissionedfrom Deloitte that the farm business would have failed in any event; theincrease in borrowing costs was not the operative cause of the farmingoperation failing. I reject Ms Smith's contention that the Deloitte reportis inadmissible. Westpac may have used the report at mediation, but itwas clearly prepared for the purpose of the litigation and Westpac isentitled, as the holder of the privilege, to waive such litigation privilege(s 57(2) of the Evidence Act 2006 applies).I also agree with the submission of Westpac that the plaintiffs' claim offiduciary duty is problematic. While in principle a bank may owe15 Gustav & Co Ltd v Macfield Ltd [2008] NZSC 47, [2008] 2 NZLR 735 at [6].fiduciary duties to a customer, the case law establishes that "veryspecial circumstances" must exist for a fiduciary duty to be owed by abank to a non-customer16 (i.e. the Hennah Partnership, the mostsignificant plaintiff in terms of quantum).Ultimately, of course, it is only possible at this stage to form animpression of the merits of the plaintiffs' claim. My impression at thisstage is that there are some significant weaknesses, albeit the claims arenot prima facie unmeritorious.(d) Does the plaintiff have access to third-party funding? There is someevidence of financial support for the plaintiffs from external sources,but it appears to be informal and from persons or entities with no directinterest in the subject matter of the litigation. I find that this is not afactor of any real significance in this case.(e) Would the denial of security for costs be oppressive to the reasonableinterests of Westpac? As noted, this is complex litigation and may wellbe protracted. I doubt that it can be said to be oppressive for Westpac,although I acknowledge that it does face the risk of significant costs.[26] I now turn to address the factors that may tend against an order against animpecunious plaintiff:17(a) Is it reasonably probable that impecuniosity was caused by thedefendant? I have already addressed the issue of my impression of themerits. I accept the sincerity of the plaintiffs' claims that the strainedfinancial circumstances have a link to the issues raised in theseproceedings. Westpac disputes any causative link and says that thefarming operations failed because of other factors. The reasonablyprobable threshold has not been established.16 BNZ v Maas-Geesteranus (1991) 4 PRNZ 689 (CA) at 693.17 Highgate on Broadway Ltd v Devine, above n 10, at [23].(b) Would ordering security deprive the plaintiffs of the capacity toadvance a prima facie meritorious claim? I doubt that the ordering ofsome security would result in the plaintiffs' claims being brought to adead halt. The real issue is the quantum of any security, a matter Iaddress below.(c) Have the defendants' delayed unduly in applying for security? Theanswer is no. Westpac first raised the issue of security in March 2021.The issue of security was put on hold pending an agreed mediationprocess. There have also been issues with the COVID-19 lockdowns.Mediation did not take place until February 2022.[27] As to any further factors of a general nature, there is no particular conduct ofeither party that is relevant in this case.[28] In addressing the overriding and most important consideration of how best tobalance the respective interests of the parties, I conclude that there should be a modestamount of security for costs at this stage of the proceedings. I reject the contention ofMs Smith that security should be deferred and addressed after discovery. In reachingthat conclusion I acknowledge the importance of access to justice, but I do not believethat the imposition of some security at this stage will prevent the plaintiffs frompursuing their claims. There are some problems with the merits of the claim, althoughI accept, as Ms Smith submitted, that Westpac is a large financial institution that haspublicly acknowledged some role in the mis-selling of interest rate swap products inthe farming industry. The Commerce Commission investigation and settlement doesprovide some support for the plaintiffs' claims.[29] As to quantum, I conclude that the plaintiffs should pay security for costs inthe sum of $25,000 with the issue to be reviewed after the conclusion of discovery andany related interlocutory applications. I reject Westpac's submission and calculationof a sum of $50,000. Security for costs is generally a forward-looking exercise andWestpac's calculation does include steps already taken and costs incurred in theproceedings.18 I acknowledge that the plaintiffs' claim is for a considerable sum andthat is a factor relevant in the balancing exercise. I also record Mr Hennah'sacknowledgment that there is "an expectation that we put our money where our mouthis and we are prepared to do that if it is considered by the Court appropriate to do so".19[30] I grant Westpac's application for an order for security for costs. The plaintiffsare to provide security in the sum of $25,000 on the terms set out below.Application by Westpac for particulars – second amended statement of claim[31] Westpac says that the plaintiffs' second amended statement of claim isdefective and does not give particulars sufficient to give fair notice of the causes ofaction relied on. They say the pleading is not compliant with High Court Rulesr 5.26(b).[32] Particulars of pleadings are important to:20(a) inform a defendant as to the case it has to meet;(b) limit the scope of matters the plaintiff may put in issue at trial (or inpre-trial settlement discussion);(c) enable a defendant to know what witnesses it will need to retain andenable it to start preparing evidence ahead of the formal exchange ofevidence; and(d) provide an opportunity for a defendant to seek summary determinationon the basis that the claim as pleaded is untenable.[33] There is substantial merit to the complaints that Westpac makes about thesecond amended statement of claim. I acknowledge that the claims are complex and18 Pickard v Ambrose HC Wellington CIV-2003-091-143, 13 August 2009 at [9]; Ambrose v Pickard[2009] NZCA 502 at [42].19 Mr Hennah does go on to record: "However, in these circumstances, where our financial positionis as a direct result of the interference from the conduct of the defendants, we are loath to seek toencumber our family and friends".20 Platt v Porirua City Council [2012] NZHC 2445 at [19].difficult but where, as acknowledged, the claims are novel, the damages sought aresubstantial and serious allegations of misconduct and dishonesty are made, it isessential that Westpac has a clear understanding of the case to which it needs torespond. The second statement of claim, a genuine attempt to address Westpac'srequest for further particulars, contains a great deal of information, some of which isbest categorised as evidence rather than particulars which assist Westpac inunderstanding the case it has to meet. This may well be a case, a complex one, wherethere has been an over-pleading. That can lead to the obscuring rather than theclarifying of issues.21[34] The parties accept that it not necessary for me to address the detailed requestfor further particulars contained in the schedule filed with the submissions. Therewould be little utility in my doing so. That schedule does, however, provide someuseful guidance to the plaintiffs in terms of broad categories of concern that should beaddressed in any amended pleading.[35] It is apparent from the submissions of Ms Smith that at the heart of theplaintiffs' claim is an allegation of unconscionability. She referred me to the followingparagraph in the Supreme Court judgment Gustav & Co v McLachlan Ltd:22 Equity will intervene when one party in entering into a transaction,unconscientiously takes advantage of the other. That will be so when thestronger party knows or ought to be aware that the weaker party is unableadequately to look after his own interests and is acting to his detriment. Equitywill not allow the stronger party to procure or accept a transaction in thesecircumstances. The remedy is conscience-based and, in qualifying cases, theCourt intervenes and says that the stronger party may not take advantage ofthe rights acquired under the transaction because it would be contrary to goodconscience to do so. The conscience of the stronger party must be so affectedthat equity will restrain that party from exercising its rights at law. Allnecessary consequential orders may be made in aid of the primary remedy.[36] The above paragraph is of course expressed in somewhat broad and abstractterms. The critical issue to address in framing an amended pleading is to provide someflesh and detail as to each of the critical elements of the underlying cause of action of21 Body Corporate 74246 v QBE Insurance (International) Ltd [2015] NZHC 1360 at [18(e)] citingBNZ Investments Ltd v CIR (2008) 23 NZTC 21,821 (HC) at [45] per Miller J.22 Gustav & Co Ltd v Macfield Ltd, above n 15, at [6]. The plaintiffs also rely upon Moffat v Moffat[1984] 1 NZLR 600 and the dicta of Somers J that unconscionable bargain is but a "species" ofequitable fraud.unconscionable bargain/transaction. That requires particulars as to how Westpacallegedly unconscionably took advantage of the plaintiffs, how Westpac knew or oughtto have been aware that the plaintiffs were unable adequately to look after their owninterests, how the plaintiffs acted to their detriment, and how in the particularcircumstances of this case was the conscience of Westpac so affected that the Courtshould restrain it from exercising its rights at law.[37] To the extent that the plaintiffs rely on equitable fraud, again, the pleadingneeds to be clear as to the particular kinds of obligations that they rely upon and inwhat particular manner those obligations were breached. The case law makes it clearthat any disability or disadvantage must be sufficiently serious before equity willintervene. Again, the pleading needs to address specifically the key factual basis forcontending that the disability and/or disadvantage is of that kind.[38] The submissions of Westpac in these interlocutory applications provide someassistance and guidance to the plaintiffs in addressing potential obstacles to asuccessful pursuit of their claims. So, for example, any amended pleading mightsensibly address the question of whether the plaintiffs did or could reasonably haverelied upon their own independent advisers23 and whether the plaintiffs knew of therisks associated with interest rate swaps and/or had any reasonable basis for beingaware of those risks.[39] As noted above, there are significant allegations throughout the pleading ofmisleading and deceptive conduct. I agree with the submission of Mr Upton that thedefendants are entitled in accordance with r 5.17(2) to particulars of the facts reliedupon for allegations of that nature.24[40] It is clear from the submissions of Ms Smith that each of the causes of actionare equitable causes of action, including claims of fiduciary duties said to be owed by23 See for example Bradley West Solicitors Nominee Co Ltd v Keeman [1994] 2 NZLR 111; Bartle vGE Custodians Ltd [2010] 1 NZLR 802.24 See Kimble Contracting Ltd v Wouldes [2017] NZHC 1554 at [38]; see also Three Rivers DistrictCouncil v Bank of England (No 3) [2003] 2 AC 1 (HL). The plaintiffs also need to take care withthe use of terminology. So for example, [53] of the second amended statement of claim alleges"glossing over the content" of the use of derivative products. The pleadings should make clearwhether allegations of this kind amount to the deliberate withholding of information or a breachof a duty of loyalty or are an allegation of carelessness/breach of a tortious standard of care.Westpac in their alleged capacity as financial adviser. The plaintiffs rely upon theAustralian decision Commonwealth Bank of Australia v Smith,25 where it was held:A bank may be expected to act in its own interests in ensuring the security ofits position as lender to its customer, but it may have created in the customerthe expectation that nevertheless it will advise in the customer's interests as tothe wisdom of a proposed investment. This may be the case where thecustomer may fairly take it that to a significant extent his interest is consistentwith that of the bank in financing the customer for a prudent business venture.In such a way the bank may become a fiduciary and occupy the position ofwhat Brennan J has called "an investment adviser" (Daly v Sydney StockExchange Ltd (1986) 160 CLR 371 at 384–385).[41] Any pleading relying upon allegations of that kind must address the particularways in which the defendants created in the plaintiffs the expectation that it wouldadvise in the plaintiffs' interests as to the wisdom of a proposed investment. That isnot to be answered by quoting large extracts of evidence but, rather, requires clear andprecise allegations as to exactly what Westpac did to create an actionable expectation.That may legitimately be done by cross-referencing but does need to be done in aconsistent and readily understandable fashion.[42] I grant the defendants' application that the plaintiffs file an amended pleading.The terms of my orders are set out below.Costs application by Westpac – discontinuance by Mr Hennah as plaintiff[43] In the original statement of claim and amended statement of claim Mr Hennahwas named as the second plaintiff in his personal capacity.[44] Westpac says that Mr Hennah had no standing to bring the proceeding in hispersonal capacity, having been adjudicated bankrupt on 23 March 2013.[45] A notice of discontinuance was filed and served by Mr Hennah on 22 March2022. Westpac seeks costs in relation to that discontinuance in the sum of $10,157.[46] The starting point is r 15.23 of the High Court Rules. It reads:2625 Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 at 391.26 That is based on a 2B calculation with a 25 per cent uplift.CostsUnless the defendant otherwise agrees or the court otherwise orders, a plaintiffwho discontinues a proceeding against a defendant must pay costs to thedefendant of and incidental to the proceeding up to and including thediscontinuance.[47] Costs are ultimately at the discretion of the Court. In this case, I am notpersuaded that the defendants have truly incurred any additional cost in defending theproceedings as a result of Mr Hennah being a plaintiff in his personal capacity. Theremay have been some, relatively minor, attendances but in the overall scheme of thecase, and given the focus of the interlocutory applications to date, I do not regard thisas material. I agree with the submission of Ms Smith that to award costs here wouldbe disproportionate. I also accept that the plaintiffs gave some genuine considerationto whether Mr Hennah, despite his bankruptcy, had legitimate claims in relation to theprotection of his reputation and the like.[48] I dismiss the defendants' application for costs in relation to the discontinuanceby Mr Hennah.Result[49] I grant the defendants' application for security for costs. The plaintiffs arerequired to deposit the sum of $25,000 by way of security with the Registrar by15 July 2022. In the event that security is not lodged, then the proceedings are stayed.[50] If security in the sum of $25,000 is paid, as I have ordered, then any furthersecurity may be addressed following the completion of discovery and the hearing anddetermination of any associated interlocutory applications.[51] I grant the defendants' application that the plaintiffs provide further particularsby way of an amended statement of claim. Any amended statement of claim is to befiled and served by 30 July 2022.[52] I dismiss the defendants' application that Mr Hennah pay costs as a result ofhim discontinuing his claims in his personal capacity.[53] As to costs on these applications, I am of the preliminary view that havingsucceeded on the two main applications, Westpac is entitled to costs and on a 2B basis.Some minor deduction should be made for the loss on the costs application, but that isunlikely to be significant.[54] If costs cannot be agreed, then memoranda are to be filed (no more than threepages) within 14 days.__________________________Associate Judge P J Andrew