Federal Court of Australia

Borkowski v Westpac Banking Corporation [2026] FCA 1396

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth), judgment be entered in favour of the Respondent in relation to the claims made by the First and Second Applicants in their Originating Application filed on 10 February 2026 and Statement of Claim filed on 19 May 2026.

2.    Any application for costs must be made by filing an outline of submissions and any affidavit material on the question of costs within 5 business days of the date of this order.

3.    Any outline of submissions and affidavit material responsive to an application for costs must be filed within 5 business days of the receipt of the material referred to at order 2, above.

4.    Subject to any contrary order, the question of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BENNETT J:

Introduction and SUMMARY of conclusions

1    The Applicants in this proceeding Mrs Dorota-Donata and Mr Michael Borkowski entered into a Loan Agreement with the Respondent, Westpac Banking Corporation, for a Loan that was secured by a registered Mortgage over a Property in Taylors Hill, Victoria.

2    The enforcement of the security by the Respondent was challenged by the Applicants in the County Court and then the Supreme Court. Those challenges were unsuccessful. In this Court, the Applicants sought to deploy a range of arguments that the Respondent had acted inappropriately in relation to the enforcement action or had not carried out its obligations fairly or properly. It is common ground that the appeals in relation to those matters have been exhausted and that this Court cannot re-visit the issues already determined.

3    Nonetheless, the Applicants have filed in this Court, a statement of claim which purports to put in issue a variety of matters which concern the way in which Westpac conducted itself prior to the sale of the Property. For the reasons that I have explained, to the extent that it does so, the claim is an abuse of process and it is appropriate that it be summarily dismissed.

4    In respect of the conduct which is said to have taken place after the sale of the Property, it is common ground that claims relating to those matters could not have been encompassed within the earlier court proceedings. For the reasons that I have explained below, I have concluded that the Applicants’ claims in relation to those matters are lacking in substance and have no reasonable prospect of success, so that they should be summarily dismissed.

5    Finally, in the course of the hearing of this matter, an issue arose about the potential practice of the Respondent of charging its costs of this proceeding and deducting those amounts from the amounts owed by the Applicants under the Loan Agreement, prior to any order as to their appropriateness in this Court. In the course of oral submissions, it was suggested that Westpac had deducted amounts for its costs of this proceeding from loan accounts held by the Applicants. The position was unclear, and so I granted limited leave for Westpac to file further submissions explaining the legal basis for that practice and for the Applicants to file responsive submissions in relation to that issue. Westpac’s submissions asserted that the costs were deducted prior to the commencement of the present proceedings. References to a “Federal Court proceeding” in narrations accompanying the invoices were said to relate to the foreshadowed commencement of proceedings in this Court to prevent settlement of the sale of the Property, not the present proceeding. I return to this issue at the conclusion of these reasons.

Background facts

6    In 2008, the Applicants, Mrs Dorota-Donata and Mr Michael Borkowski entered into a Loan Agreement with the Respondent, Westpac for a Loan which was secured by a registered Mortgage over a Property in Taylors Hill, Victoria. The Loan was ultimately split across two accounts (the First and Second Loan Accounts).

7    In 2022, the Applicants defaulted on their repayment obligations in respect of both the First and Second Loan Accounts. On 2 August and 1 December 2022, the Respondent served Default Notices in respect of the First and Second Loan Accounts respectively pursuant to s 76 of the Transfer of Land Act 1958 (Vic) and s 88 of the National Credit Code, being schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) (NCCP Act). The Applicants failed to remedy the defaults.

8    On 27 April 2023, the Respondent commenced proceedings in the County Court of Victoria seeking an order for possession of the Property (County Court Proceeding). When no appearance was filed by the Applicants, Westpac sought default judgment, and filed two affidavits of service and an affidavit of Ms Gee-Clark dated 22 May 2023 in support of that application. On 24 May 2023, the County Court granted judgment in favour of the Respondent against the Applicants, in default of the Applicants filing an appearance (Default Judgment). The Respondent obtained a warrant of possession in respect of the Property on 26 June 2024 (Warrant) and took possession of the Property on 18 September 2024.

9    On 1 November 2024, Mrs Borkowski filed a complaint against Westpac with the Australian Financial Complaints Authority. The complaint was closed on 14 April 2025.

10    On 2 April 2025, Mrs Borkowski filed an application in the County Court Proceeding seeking orders to set aside the Default Judgment and Warrant. Orders were also sought that all enforcement action, including execution of the Warrant be stayed pending a “full jurisdictional review”. That application was supported by three affidavits, a draft defence and written and oral submissions. The application was dismissed by Judge Burchell on 30 April 2025 (County Court Order).

11    On 9 May 2025, both of the Applicants filed an originating motion in the Supreme Court of Victoria seeking judicial review of the County Court Order pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Supreme Court Proceeding). By their originating motion, the Applicants asserted among other things, that the Warrant was issued in contravention of r 53.08(1) of the County Court Civil Procedure Rules 2018 (Vic) and that they were denied procedural fairness. The “decision under review” was said to include:

•    The dismissal of the Plaintiff’s application;

•    The failure to apply Rule 53.08(1) as a mandatory statutory precondition to enforcement;

•    The absence of reasons addressing the Plaintiff’s core argument and Charter claims;

•    The denial of procedural fairness and natural justice arising from these failures.

12    On 3 July 2025, Westpac filed a summons seeking orders for summary judgment in respect of the Applicants’ originating motion on the grounds that the Applicants’ claims had no real prospects of success. At the hearing of the summary judgment application, the Applicants sought leave to file an amended originating motion containing new grounds. The proposed amended originating motion referred to alleged breaches of the Charter of Human Rights and Responsibilities Act 2006 (Vic) and various statutes, a denial of procedural fairness, decisions that were said to be made without evidence and fraud. The decisions it sought to review included the following:

(1)    The Default Judgment on the basis that it was for monetary arrears only and not the possession of the property and that it lacked foundational documents;

(2)    The Warrant on the basis that the County Court Registry did not have jurisdiction to seal the warrant administratively and it ought to have been judicially considered;

(3)    The Registrar of Title’s transfer of the property from Westpac to its solicitors, MinterEllison;

(4)    The County Court Orders on the basis that the County Court lacked jurisdiction and denied the Applicants procedural fairness.

13    That application was ultimately refused. On 2 October 2025, Associate Justice Ierodiaconou granted summary judgment in the Supreme Court Proceeding in favour of the Respondent. Her Honour granted the Respondent indemnity costs because the Applicants’ claim had no real prospects of success, and the Applicants ought to have known that and the Applicants had acted unreasonably in pursuing the proceeding.

14    On 19 November 2025, the Respondent sold the Property as mortgagee in possession. The settlement of the Property occurred on 19 December 2025. In January 2026, the Respondent notified the Applicants of the settlement and potential surplus funds from the sale. In response the Applicants requested certain information and documents in relation to the sale of the Property and refused to provide account details to the Respondent for the distribution of surplus funds.

15    The Applicants commenced this proceeding by way of an originating application filed on 10 February 2026. The Applicants filed a statement of claim on 19 May 2026. By their originating application and statement of claim, the Applicants seek relief including declarations, orders for production of documents, and compensation in respect of a range of alleged contraventions by the Respondent in relation to the provision of documents and information in respect of the sale of the Property and the First and Second Loan Accounts, and the enforcement action taken by the Respondent. The allegations focus upon contraventions of provisions of the Credit Code including s 88, the Australian Banking Association’s Banking Code of Practice (Banking Code) and Chapter III of the Constitution.

16    The Applicants state in their originating application that they do not seek appellate relief from any County Court judgment, merits review of State court outcomes, or supervisory relief against any State court or judicial officer.

17    By interlocutory application filed on 10 June 2026, the Respondent seeks orders pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) or r 26.01 of the Federal Court Rules 2011 (Cth) for summary judgment on the grounds that the Applicants have no real prospect of successfully prosecuting the claim in respect of the proceeds of sale of the Property and that the balance of the claims are precluded by Anshun estoppel and/or constitute an abuse of process, and accordingly, have no real prospect of success as they either were, or ought to have been raised in the earlier County Court or Supreme Court Proceedings.

THE APPLICANTS’ CLAIM

18    The Applicants have filed an originating application and a statement of claim. The focus of the proceeding is the Loan and the enforcement action taken by Westpac in relation to the Loan as secured against the Property, which was the subject of the County Court Proceeding. There are a variety of complaints. Without repeating them verbatim, they can generally be understood to fall within the following categories:

(1)    Allegations that the Applicants’ loan arrangements were restructured or altered by Westpac in a way that was impermissible or inconsistent with statutory responsibilities.

(2)    Allegations that there was a failure to engage in proper disclosure concerning the indebtedness asserted by Westpac to enable the Applicants to ascertain the amount lawfully owing for the purpose of addressing the alleged arrears or pursuing alternative options including hardship assistance, or a failure to provide certain documents about the Loan that were relied upon by Westpac in the enforcement process.

(3)    Allegations that the Respondent breached the Credit Code by failing to provide certain information and documents concerning the Loan and the application of the proceeds of the sale of the Property.

(4)    Allegations that the Respondent breached the Banking Code in various ways, including by failing to act fairly, reasonably, transparently and consistently in connection with the Loan and the provision of information relevant to it.

(5)    Allegations of irregularities in the manner in which the proceeds of sale have been dealt with, including by failing to distribute the funds to the Applicants, and failing to permit verification of the amount of the funds.

(6)    Despite asserting that the proceedings in this Court do not seek to disturb or review previous proceedings, the Applicants allege:

(a)    The Respondent was not entitled to rely upon the Default Notices issued pursuant to s 88 of the Credit Code in taking subsequent enforcement action in respect of the First and Second Loan Accounts.

(b)    That “possession and enforcement processes were obtained through procedural mechanisms permitting administrative, registrar-level or solicitor-initiated enforcement steps without substantive judicial determination of” various matters, so that the possession was said to be procured and executed without “proper accounting, verification, and disclosure of the amount lawfully owing under the regulated credit relationship”.

(c)    Irregularities which, it is contended, meant that the Applicants could not assess or challenge the indebtedness asserted.

19    The causes of action that the Applicants assert are said to arise “under the National Credit Code and associated Commonwealth legislation”. It is also asserted that there are constitutional issues, in that possession and enforcement were carried out without judicial determination or otherwise inconsistently with Chapter III of the Constitution. These issues are said to arise because the Default Judgment did not involve judicial determination of the “accounting controversy”.

20    In the hearing, the Applicants made a range of claims, including that the Respondent controls relevant documents and that material payment pathways were omitted, and that certain documents were omitted from litigation. At the hearing of this application, there was a particular focus from the Applicants on correspondence concerning the Applicants’ attempts to access hardship assistance from Westpac, or to tell them how they could successfully clear the arrears. During 2023, Westpac received requests from the Applicants to address the arrears or reduce the debt.

21    The Applicants sought to raise what they said were inconsistencies that were never engaged with in the County Court or Supreme Court Proceedings, which were mainly concerned with accounting irregularities or verification of various documents. It was said that Anshun estoppel could not or should not arise in relation to these issues.

22    In relation to complaints concerning conduct prior to the sale of the Property, the Applicants accepted that they knew about the issues that they now complain of at the time they previously litigated in the County Court and the Supreme Court, but said that they were litigants in person and did not know how to deploy them at the time.

The present application

23    The Respondent submits that the proceeding should be dismissed summarily pursuant to s 31A(2) of the Federal Court Act and/or r 26.01 of the Rules on the basis that either:

(1)    the claims are precluded by Anshun estoppel or constitute an abuse of process, and so have no real prospect of success; or

(2)    in respect of some of the claims which relate to conduct after the sale of the Property which are therefore not within the ambit of those matters which could have been litigated prior to that time, those claims have no real prospect of success.

24    The Applicants resist summary determination and argue that they seek to raise new issues, or that issues previously raised were not judicially determined and thus remain available to proceed. They say that the issues raised are serious, and should proceed to trial rather than be subject to summary determination.

25    The Respondent’s application is supported by the affidavit of Shufei Qu affirmed on 9 June 2026 which annexes material relevant to the matters in the County Court, and the Supreme Court Proceedings.

26    The Applicants rely on the affidavit of Dorota-Donata Borkowski affirmed on 22 June 2026.

principles

27    The principles applicable to this proceeding were not relevantly in dispute.

28    Section 31A of the Federal Court Act relevantly provides:

(1)     The Court may give judgment for one party against another in

relation to the whole or any part of a proceeding if:

(a)    the first party is prosecuting the proceeding or that part of the

proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding.

(2)     The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:

(a)     the first party is defending the proceeding or that part of the proceeding; and

(b)     the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.

(3)     For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:

(a)    hopeless; or

(b)     bound to fail;

for it to have no reasonable prospect of success.

29    Section 31A of the Federal Court Act calls upon the Court to determine whether there is a “reasonable” prospect of prosecuting the proceeding. Summary judgment is available (relevantly) when well-established propositions of law deny the prospect of success.

30    Of course, the parties accept that summary dismissal is a “serious step taken only with great care” and if the Court is confident that there is no reasonable prospect of success (Li v Nursing and Midwifery Board of Australia [2026] FCA 733 at [12] (Hill J), citing Sop & Sop Pty Ltd v Commissioner of Taxation [2019] FCA 102 at [13]-[15] (Kenny J); National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627 at [122] (Allsop CJ); Scordo v Commonwealth Bank of Australia [2024] FCA 359 at [45] (Button J)).

31    The principles relevant to summary dismissal were identified by Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; 236 ALR 720 (at [31]-[48]), as conveniently summarised by Jacobson J in Commonwealth Bank of Australia (ACN 123 123 124) v ACN 000 247 601 Pty Limited (in liq) (Formerly Stanley Thompson Valuers Pty Limited) [2006] FCA 1416 (at [30]), as follows:

•    In assessing whether there are reasonable prospects of success, the Court must be cautious not to do an injustice by summary dismissal.

•    There will be reasonable prospects of success if there is evidence which may be reasonably believed so as to enable the party against whom summary judgment is sought to succeed at the final hearing.

•    Evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects.

•    Unless only one conclusion can be said to be reasonable, the discretion under s 31A cannot be enlivened.

32    Rule 26.01 of the Rules relevantly provides that:

(1)     A party may apply to the Court for an order that judgment be given against another party because:

(a)     the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

(b)     the proceeding is frivolous or vexatious; or

(c)    no reasonable cause of action is disclosed; or

(d)     the proceeding is an abuse of the process of the Court; or

(e)     the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

33    Relevant to present purposes, the Court may give judgment against another party because there are no reasonable prospects of successfully prosecuting the proceeding or the proceeding is an abuse of the process of the Court.

34    The circumstances in which the Court may prevent an abuse of process were helpfully summarised by Halley J in Pain v Lombe (liquidator), in the matter of Babcock & Brown Ltd (in liq) [2024] FCA 1338. Among other things his Honour emphasised a number of relevant propositions which may be paraphrased as follows:

(1)    It is not necessarily an abuse of process to raise a matter that could have been raised in earlier proceedings (at [63], citing Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 at 31 (Bingham LJ), at 59 (Millett LJ); Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 at [3]-[4] (Allsop P)).

(2)    The Court undertakes a weighing process involving a broad merits-based judgment, which considers both the public and private interests involved (at [64], citing Kermani v Westpac Banking Corporation [2012] VSCA 42; 36 VR 130 at [97]; South Townsville Developments Pty Ltd (in liq) v Lauvan Pty Ltd [2019] FCA 666 at [53]-[54] (Stewart J)).

(3)    The Court’s power to prevent an abuse of process is enlivened when the use of the Court’s procedures would lead to unjustifiable oppression of a party or the abuse would serve to bring the administration of justice into disrepute (at [65], citing UBS AG v Tyne [2018] HCA 45; 265 CLR 77 at [1] (Kiefel CJ, Bell and Keane JJ)).

(4)    Abuse of process is an inherently broader, and more flexible doctrine than estoppel (at [66], citing Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; 256 CLR 507 at [26] (French CJ, Bell, Gageler and Keane JJ)).

35    The principles relevant to estoppel and abuse of process in the summary judgment context were also summarised by Colvin J in Clark v Commonwealth Bank of Australia [2026] FCA 940 at [10] as follows:

(1)     A party to proceedings that have been determined is precluded from raising in a subsequent proceeding any ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment (issue estoppel): Blair v Curran [1939] HCA 23 (1939) 62 CLR 464 at 510 (Starke J), 531-533 (Dixon J);

(2)    A party is also precluded from raising a claim or issue in a proceeding if that claim or issue was so connected with the subject matter of a previous proceeding as to make it unreasonable in the context of that previous proceeding for the claim not to have been made or the issue not to have been raised in that proceeding (Anshun estoppel): Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; and

(3)    A party is also precluded from using the procedures of the court in a way that would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute having regard to what has occurred in previous proceedings (abuse of process): Walton v Gardiner (1993) 177 CLR 378 at 393.

36    Only Anshun estoppel and abuse of process were substantively raised by the Respondent in this application.

37    The relationship between issue estoppel and abuse of process was explained further by Gordon, Gleeson and Beech-Jones JJ in Mayfield Development Corporation Pty Ltd v NSW Port Operations Hold Co Pty Ltd [2026] HCA 12; 100 ALJR 621 at [63]-[64] as follows:

Although the doctrine of abuse of process is informed, in part, by similar considerations of finality and fairness as issue estoppel, it is "inherently broader and more flexible than estoppel". As Mason CJ said in Rogers v The Queen: "there are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute".

The legal process of a court may be abused where the intention is to "litigate anew a case which has already been disposed of by earlier proceedings", where to do so causes manifest unfairness to a party or would otherwise bring the administration of justice into disrepute. "[M]aking a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel". Similarly, "making such a claim or raising such an issue can constitute an abuse of process", even "where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel".

(Footnotes omitted).

38    The kinds of factors that can be relevant to an analysis when identifying an abuse of process as an inappropriate attempt to re-litigate issues were identified by Charlesworth J in Morros v Commonwealth Bank of Australia [2025] FCA 800 at [13] where her Honour said:

In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Tort Rep 81 – 423, Giles CJ identified some of the guiding considerations when identifying an abuse of process founded on an improper attempt to relitigate issues as follows (at [64,089]):

(a)   the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue;

(b)   the opportunity available and taken to fully litigate the issue;

(c)   the terms and finality of the finding as to the issue;

(d)   the identity between the relevant issues in the two proceedings;

(e)   any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of –

(f)   the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and

(g)   an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process.

39    The principles concerning Anshun estoppel were summarised by O’Bryan J in Orikan Group Pty Ltd v Vehicle Monitoring Systems Pty Ltd [2023] FCA 1031; 177 IPR 319 in the following way (at [26]-[27]):

Anshun estoppel operates to preclude the making of a claim, or the raising of an issue of fact or law, in a subsequent proceeding if the claim or issue was so connected with the subject of an earlier proceeding that it would have been unreasonable, in the context of the earlier proceeding, for the claim not to have been made or the issue not to have been raised in that  proceeding: see Anshun at 598, 602-3 (Gibbs CJ, Mason and Aickin JJ); Tomlinson v Ramsey Food Processing Pty Limited (2015) 256 CLR 507 (Tomlinson) at [22] (French CJ, Bell, Gageler and Keane JJ).

As observed by Ormiston JA in Gibbs v Kinna (1999) 2 VR 19 (Gibbs) at [1], the double negative present in the formulation of the test for Anshun estoppel is significant. The relevant question is not whether it would have been reasonable to rely on a particular defence or cause of action, or to have raised an issue, in the earlier proceeding; rather, the question is whether it was unreasonable to defer doing so. The assessment of unreasonableness depends not so much on legalities, as on practicalities.

40    Thus, there are two necessary but not sufficient conditions to enliven Anshun estoppel:

(1)    first, the relevant cause of action or issue must be one that could have been raised in the earlier proceeding; and

(2)    second, the same or substantially the same facts must arise for consideration in both proceedings.

41    The authorities make clear that it is critical to identify unreasonableness, the mere fact that proceedings may be closely related is insufficient to attract Anshun estoppel (Orikan at [28], citing Egglishaw v Australian Crime Commission [2007] FCAFC 183; 164 FCR 224 at [28] (Finn, Kenny and Edmonds JJ) and the cases cited therein). It has been recognised that the failure to raise a defence available in an earlier proceeding may or may not have been unreasonable, depending on the circumstances. In this respect Allsop P noted in Champerslife at [4] that:

The mere fact that the matter could have been raised does not mean it should have been raised (for the operation of the principle). Rather, it has to be so relevant as to make it unreasonable not to raise it.

(Emphasis in the original).

42    The Applicants are self-represented. The Court has an overriding duty to ensure fairness for all parties including unrepresented parties so far as is reasonably practicable to ensure a fair hearing (SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146; 216 FCR 445 at [37] (Robertson J, Allsop CJ and Mortimer J agreeing, citing Hamod v State of New South Wales and Anor [2011] NSWCA 375 (Beazley, Giles and Whealy JJA); NWQR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 30 at [27] (Farrell, Wigney and Perry JJ). Of course, that duty does not involve conferring an advantage on a person who is self-represented (Kumar v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 79 at [21] (Collier ACJ, Goodman and Meagher JJ)).

43    Taken together, it is necessary to consider the claims which the Applicants now seek to deploy, and consider them by reference to the matters that have previously been raised and whether it was unreasonable not to raise them then. No question of issue estoppel arises. The relevant question is whether the claims ought reasonably to have been raised in the earlier proceedings and whether their pursuit now would constitute an abuse of process.

the previously litigated claims

44    This proceeding fundamentally concerns the Loan and the way in which Westpac enforced the Loan through the sale of the Property. Set out below are the claims which are now pursued, and consideration of whether they have or should have been raised in earlier proceedings. It is convenient to consider both s 31A of the Federal Court Act and r 26.01 of the Rules together.

45    The core of the Applicants’ argument in the County Court and Supreme Court Proceedings was that Westpac did not have lawful authority to do what it did in taking possession of the Property and selling it. That remains at the core of the present proceeding. It does not assist the Applicants to seek to focus on small constituent elements of the entitlement to repossess and to sell the Property in the hope of distinguishing them from the overall steps that were taken.

46    It is clear (and the Applicants agree) that this Court does not have the power to set aside an order of the Supreme Court, or the County Court. It does not sit in appeal and there is no review process at all involved in respect of those Court’s processes. Consideration of the issues must begin having regard to the notion that the Property has already been sold pursuant to the orders made in other jurisdictions.

47    Having made those general comments by way of overview, I proceed to consider each category of claim now raised. In the course of oral arguments, the Applicants accepted that the summary set out below represented a fair summary of the claims that they have sought to raise.

Section 88 of the Credit Code

48    Section 88(1) of the Credit Code states that a credit provider must not begin enforcement proceedings against a debtor in relation to a credit contract unless:

(a)    the debtor is in default under the credit contract; and

(b)    the credit provider has given the debtor, and any guarantor, a default notice, complying with this section, allowing the debtor a period of at least 30 days from the date of the notice to remedy the default; and

(c)    the default has not been remedied within that period; and    

(d)    if the credit contract is for a reverse mortgage, the credit provider has spoken to one of the following persons by telephone or in person in that period and has thus both confirmed that the debtor received the default notice and informed the person of the consequences of failure to remedy the default, or has made reasonable efforts to do so:

(i)    the debtor;

(ii)    a practising lawyer representing the debtor;

(iii)    a person with a power of attorney relating to the debtor’s financial affairs.

49    This proceeding did not involve a reverse mortgage. In their submissions before the County Court, the Applicants said:

At no stage has the Plaintiff produced verifiable evidence of its standing as a lawful creditor. Given the known practices of securitisation, the Plaintiff must prove current, lawful entitlement to enforce, not merely historical debt existence. Failure to do so mandates dismissal of the proceeding and voiding of enforcement.

50    The affidavits filed in support of the Applicants’ application in the County Court Proceeding list a range of alleged breaches of human rights, criminal law, the Australian Consumer Law (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)), as well as generally alleging “repossession and enforcement without lawful authority”.

51    Similarly, the reasons for Associate Justice Ierodiaconou’s judgment in the Supreme Court Proceeding recorded the Applicants’ argument in the following terms:

…Westpac’s enforcement and recovery of the property is based on a breach of contract and is void. Mrs and Mr Borkowski did not consent to Westpac restricting their loan. Nor was there any deed of variation or consent. Westpac have refused to provide these documents in breach of privacy principle 12 of the Australian Privacy Principles. There is ongoing concealment of securitisation, the loan mortgage insurance fees and loan restructuring. On 23 September 2025, they lodged a dealing on the title prohibiting further improper dealings.

52    Overall, it is clear that the Applicants had ample opportunity to raise any and all issues concerning compliance with various legal obligations, including, in substance, Westpac’s compliance with its obligations in establishing its entitlement to the funds secured by the sale of the Property.

53    The mere failure to specifically advert to a particular provision does not undermine this conclusion: both Anshun estoppel and abuse of process look to the substance of the party’s conduct. In this case, the substance of the Applicants’ approach was to impugn almost every aspect of Westpac’s conduct. Those arguments were not successful in the County Court and Supreme Court Proceedings. It is oppressive to the Respondent to permit them to be re-agitated again. Similarly it would bring the administration of justice into disrepute to permit re-litigation of the same issues in a manner which undermines the finality of litigation.

54    The Applicants assert that they could not put forward the arguments about s 88 of the Credit Code in the earlier proceedings as they were not aware of them, because they were self represented. I do not accept that is a proper reason for failing to raise an issue (if it was not raised). The Applicants engaged extensively with allegations that the Respondent had engaged in inappropriate conduct and produced a long list of alleged breaches in the material filed in the County Court and Supreme Court Proceedings. It is not available to assert that because one was not identified by name, it is now available to run again.

55    The issue now sought to be advanced under s 88 arises out of the same default notices, enforcement steps and asserted indebtedness that formed the subject of the earlier proceedings. If the Applicants wished to contend that the statutory preconditions to enforcement under the Credit Code had not been satisfied, that was a contention which could readily have been advanced in those proceedings.

56    Accordingly, the matters were either actually agitated in the earlier proceedings, or were so connected with them that it was unreasonable not to raise them at that time. It would be an abuse of process to re-litigate them in this Court.

Failure to provide accounting, contractual and loan documentation to allow verification of loan amounts, fees, expenses, arrears, and the basis upon which amounts attributed to the Second Loan Account became secured by the mortgage

57    By each of these allegations, the Applicants assert that they had sought, and not been given, access to various documents. The core of the issue raised by the Applicants in this respect is related to that raised in relation to s 88 of the Credit Code, i.e. the Applicants assert that they were not placed in a situation where they could ascertain, verify and discharge the indebtedness asserted by the Respondent. This is put in a number of different ways in the proceeding in a range of different paragraphs of the statement of claim. It is also raised as an alleged contravention of Westpac’s obligations under the Credit Code and other similar allegations, i.e. as a failure to provide accounting and calculation materials.

58    While the Applicants seek to put these complaints in a range of different ways, in substance, they go to the notion that the Respondent failed to provide information sufficient for the Applicants to verify their indebtedness and the charges imposed on them, at different points in time. Put another way, the complaint is that certain accounting material or records have not been provided and (I interpolate) that these would show deficiencies or irregularities that could (or would) undermine the validity of Westpac’s conduct in respect of the Loan. Moreover in the statement of claim filed in this Court, it is alleged that the Respondent proceeded to enforce the Loan and repossess the Property despite failing to provide the information sought, or verify the indebtedness.

59    In her affidavit of 23 April 2025, filed in the County Court Proceeding, Mrs Borkowski said:

Upon reviewing my Westpac account activity records, I have discovered that substantial “enforcement expenses” and related charges continued to be debited from my home loan account both prior to and well after the date of repossession. Specifically, from 18 September 2024 onwards, a total of $40,414.22 in enforcement related expenses was added to the outstanding debt. At no stage were these costs disclosed to me in advance, itemised or explained at the time they were imposed. The bank has not provided any documentation specifying the precise nature of these “enforcement expenses.” It is my understanding, based on industry practice, that such costs may include sheriff's fees, legal charges, forced insurance premiums, property valuation fees and other administrative expenses. However, in the absence of proper itemisation or explanation from the Plaintiff, I cannot confirm the exact basis or validity of each charge. A copy of the relevant Westpac loan account statement is annexed and marked Exhibit J.

60    Similarly, in her affidavit of 28 April 2025, filed in the County Court Proceeding, Mrs Borkowski said:

After repossession, substantial enforcement costs exceeding $40,000, as well as “Forced Cover Insurance”…were debited from my account by Westpac…These enforcement costs and insurance charges were imposed without any prior notice, itemisation, or disclosure, and I was not provided with the breakdown or justification for these amounts, despite repeated written requests for an explanation.

(Emphasis omitted).

61    In addition, in the course of the hearing before the County Court, the following exchange occurred:

HER HONOUR:     Did you want to walk me through your claim that there is a defective mortgage? Would that be part of any defence to the main proceeding?

MS BORKOWSKI:     Well, look, from what I'm seeing, okay, none of these actions have followed any statutory, lawful way. These have been procedural only. So I’ve started looking into the procedural and one thing that stuck out is the actual mortgage (indistinct) instrument, which hasn't been properly executed, not as according to the Land Act and Torrens system. You know, there's never been a monetary judgment either, okay, put on to the title. So, you know, who is the - who is the due holder here of the creditor standing? That needs to be proven because there are major things lacking that would suggest that the debt perhaps does not belong with Westpac.

62    Further, in their written submissions, filed in the County Court Proceeding, the Applicants asserted that:

The Plaintiff obstructed the Defendant’s ability to resolve the alleged arrears through lawful avenues, including:

•    Refusal or delay in providing necessary documentation for early release of superannuation under financial hardship grounds;

•    Refusal to issue clear, accurate and verifiable outstanding arrears statements during negotiations;

•    Rejection of reasonable lump sum offers made to extinguish the alleged debt;

•    Reliance solely on internal solicitor notices rather than obtaining judicial authority.

The Defendant’s hardship applications were substantially based on verified disability status and financial vulnerability. The Plaintiff’s refusal to cooperate, failure to provide essential documents, and obstruction of hardship remedies engage potential breaches of the Superannuation Industry (Supervision) Act 1993 (Cth) and the Disability Discrimination Act 1992 (Cth).

63    The Applicants assert that although they were raised, those arguments were never determined because the entry of default judgment did not judicially determine anything. It is said that the fact that the matters remain undetermined means that they can be ventilated now, in this Court.

64    Thus, the Applicants argue both that the matters were not squarely raised in the past, and that they were not determined in the previous proceedings. They also assert that the present issues are pleaded under Commonwealth laws, and that is necessarily different. They argue that the matters should go to trial, and not be summarily dismissed.

65    Having considered the matters put before the Judge in the County Court Proceeding, it is clear that the substance of the same issues was raised in that proceeding. The County Court Judge did not consider that those matters rose to the level of an arguable case sufficient to exercise her discretion to set aside the Default Judgment and extend the time for the Applicants to file a defence.

66    As to the argument that the issue was not actually judicially determined, that is not the correct test in the context of abuse of process and Anshun estoppel. The matters were raised before the County Court. That Court, in accordance with its rules and processes, determined that it was appropriate to refuse the relief sought by the Applicants. Those questions are not the subject of appeal (nor could they be in this Court). The Applicants have had the opportunity to have these issues ventilated, and the County Court determined it was appropriate to refuse relief. It would be an abuse of process to permit the same (or substantially the same) issues to be re-litigated in this Court.

Restructure of loan arrangements

67    There is no doubt that the existence of two loan accounts was known to the parties at the time of the County Court Proceeding. The affidavit of Mr Manoel relied upon by Westpac in the County Court Proceeding recorded the following detail:

On or about 17 September 2009, Westpac approved a request for an increase of $50,000.00 to the Loan. At pages 78 to 84 of the Exhibit is a copy of the letter of variation dated 17 September 2009 signed by the first and second defendants (Letter of Variation). The Letter of Variation forms part of Westpac’s Business Records and records that the new minimum monthly repayment for the First Loan Account would be $1,915.00.

…

On 5 April 2022, Westpac sent a letter to each of the first and second defendants proposing a remediation of the Loan. At pages 99 to 102 of the Exhibit are copies of the letters addressed to the first and second defendants dated 5 April 2022. These letters form part of Westpac’s Business Records and proposed, among other things, the following adjustments to be made to the Loan:

(a)    Westpac would split out the sum of $50,405.62 from the First Loan Account, place it into a new facility bearing loan account number ########5046 (Second Loan Account) and apply 0% interest rate to the new facility;

(b)     Westpac would apply a refund of $30,321.28 to the First Loan Account, representing interest charged on the figure mentioned in (a) above since inception of the Loan;

(c)    the expiry date of the new facility would reflect the expiry date of the First Loan Account and a principal repayment would be required for the new facility;

(d)    the existing terms and conditions of the Loan would apply to the new facility (except for the changes set out in the letters);

(e)    the existing terms and conditions of the Loan would continue to apply and remain unchanged for the First Loan Account;

(f)    as at 5 April 2022, the minimum monthly repayment on the First Loan Account would be $1,438.00, with the next payment due on 28 April 2022;

(g)    as at 5 April 2022, the minimum monthly repayment on the Second Loan Account would be $262.00, with the next payment due on 28 April 2022;

(h)    the First Loan Account had been in arrears since May 2018 and Westpac had been attempting to make contact to discuss options; and

(i)    the First Loan Account remained in arrears despite the remediation applied to it and Westpac encouraged contact to be made with it to discuss available options.

68    In addition, the reasons for the decision of Associate Justice Ierodiaconou in the Supreme Court Proceeding record that in that case, the following submissions were made by the Applicants:

…Westpac unlawfully split the loan account into a loan enforcement account without any agreement or deed of variation.

69    I am satisfied that there was ample opportunity in the context of the County Court and Supreme Court Proceedings to ventilate these issues. It would be an abuse of process to permit this matter to be ventilated afresh in new proceedings in this Court.

Lack of judicial involvement or authority

70    The Applicants in this Court argue that the Property was sold in the absence of judicial authority. That argument is put in a number of different ways. The submission appears to be that the entry of Default Judgment was not a judicial act. I apprehend this is also part of the Applicants’ constitutional argument.

71    In their written submissions filed in the County Court Proceeding, this issue was raised by the Applicants in the following way:

The Plaintiff's Default Judgment and Warrant of Possession were not valid judicial acts. The documents were solicitor-generated, signed only by a Registrar, and bear neither a judge's signature nor a court seal. No hearing, judicial reasoning, or transcript exists for these documents. As detailed in the Defendant's affidavits, no valid judgement was ever entered into the Court's records, and the Warrant of Possession was not served prior to enforcement.

72    In the reasons for the decision in the Supreme Court Proceeding, the Applicants’ argument in relation to this issue was recorded as follows:

…the warrant of possession was issued without a judicial order. Possession cannot be enforced administratively or by a Registrar. Judicial power cannot be delegated. Treating an electronic filing as a judicial act breaches the separation of powers…. No binding judicial order or binding warrant exist.

73    This issue has clearly been raised comprehensively in the earlier proceedings. It would be an abuse of process to permit it to be raised again.

Other claims

74    The Applicants relied on asserted failures to provide material that they assert ought to have been provided by Westpac in the lead up to the sale of the Property. As identified above, I am satisfied that issue was capable of ventilation in the previous proceedings.

Relief sought

75    The Applicants seek declarations that Westpac failed to provide sufficient accounting and disclosure information, and orders requiring Westpac to produce transaction level ledgers, interest calculation schedules, enforcement costs schedules, sale accounting records, documents relating to the creation of the Second Loan Account, and a range of other documents. The Applicants also seek orders for “inquiry and accounting” concerning the amounts owed, the calculation of interest and other matters, as well as orders determining the extent to which charges, interest, enforcement expenses, property related expenses and amounts attributed to the Second Loan Account were “lawfully recoverable under the mortgage arrangements”.

76    All the relief sought is directed, in essence, to the matters that have already been litigated in the Supreme Court and County Court Proceedings - being the lawfulness or otherwise of the enforcement action taken by Westpac in relation to the Loan secured against the Property. The relief sought reinforces that the claims have already been ventilated and underscore my conclusion that it would be an abuse of process to permit their re-agitation in this Court.

The post enforcement allegations

77    There are a number of claims which the Applicants seek to raise which concern conduct that took place after the possession and sale of the Property that were the subject of the County Court Proceeding. It is not in dispute that these issues could not have been raised previously because the relevant conduct largely occurred after the previous court proceedings had concluded. Some of the allegations are mixed with those which concern earlier conduct. In this section, I only consider those parts of the claim concerning conduct that occurred after the court proceedings referred to above.

The Credit Code and Banking Code

78    The Applicants allege that Westpac breached the Credit Code and the Banking Code by failing to provide documents concerning the application of the proceeds of the sale of the Property. It is difficult to identify the provisions that are said to have been breached. Westpac “guessed” the provisions being referred to, and in the course of the oral hearing, the Applicants accepted that this was accurate. The provisions are:

(1)    Section 36 of the Credit Code, which relevantly requires that, at the request of a debtor, a credit provider must provide a statement of “all or any” of the following:

(a)    the current balance of the debtor’s account;

(b)    any amounts credited or debited during a period specified in the request;

(c)    any amounts currently overdue and the dates they became due;

(d)    any amount currently payable and the date it becomes due.

Section 36 is in large part focused upon the provision of information at the time that amounts are owing. Failure to comply is an offence of strict liability (Credit Code, s 36(7)). Where a statement is requested but not provided, a debtor may apply to the Court for an order to provide either the statement or a determination of the amounts in relation to which the statement was sought (Credit Code, s 37). Section 38 of the Credit Code sets out a process by which a debtor may dispute a particular liability. In circumstances where a statement of account is provided, a notice of dispute must be given to the credit provider within 30 days after the day the debtor receives the statement of account in which the amount, or part of the amount that is in dispute is first shown (Credit Code, s 38(4)). The Applicants do not appear to rely upon s 38. The existence of that pathway in s 38 suggests that s 36 itself is limited to the provision of information.

(2)    Section 83(1) of the Credit Code, which provides:

A credit provider must, at the written request of a debtor or guarantor, provide a written statement of the amount required to pay out a credit contract (other than a continuing credit contract) as at such date as the debtor or guarantor specifies. If so requested, the credit provider must also provide details of the items which make up that amount.

Where a pay out figure is not provided in accordance with s 83(1), a court may, on the application of a debtor, determine the amount payable on the date of determination (Credit Code, s 84(1)).

(3)    Clause 22 of the Banking Code, which provides that, within 30 days of receiving a request, the bank will provide copies of certain documents including relevantly a statement of account and any notice previously given in relation to the enforcement of the bank’s rights. Clause 23(b) provides that a bank does not need to provide a statement of account under clause 22 within three months after that same statement of account was provided.

(4)    Clause 28 of the Banking Code, which provides that if the debtor is in default on their loan account, the bank will provide a statement of account or alternative (for example, transaction history) if requested.

79    The Applicants also allege a breach of clause 5 of the Banking Code, being the obligation to do all things necessary to ensure that the banking services are provided efficiently, honestly and fairly. In the statement of claim, it is alleged:

32.     Further or alternatively, the Respondent acted contrary to the Banking Code of Practice by failing to act fairly, reasonably, transparently, and consistently in connection with:

(a)     the restructuring and accounting treatment of the Applicants’ loan arrangements;

(b)     the disclosure of the indebtedness asserted;

(c)     the provision of accounting information necessary to enable redemption;

(d)     the enforcement and possession processes relied upon by the Respondent.

80    Thus, insofar as it relates to the post-enforcement aspects of the claim, the Applicants rely on the combination of provisions referred to at [78] above.

81    Westpac does not dispute the jurisdiction of this court to hear the matters alleged. It accepted that ss 186 and 187 of the NCCP Act were mechanisms by which the Applicants could pursue relief in relation to asserted contraventions of the NCCP Act and Credit Code in this Court. Given the approach taken by Westpac, I have not interrogated this analysis.

82    On 13 January 2026, the Applicants sent a letter to Westpac’s solicitors, MinterEllison requesting that certain information be provided by Westpac. They sought among other things, a “fully itemised statement of account from the date of alleged default to present” and for “full particulars of the purported sale” including “a complete completion statement showing gross proceedings, all deductions and the treatment of any surplus”.

83    On 19 January 2026, MinterEllison sent a letter in response to the Applicants’ request, providing information and documents including account statements for the First and Second Loan Accounts, as well as a settlement statement containing details of how the proceeds of the sale of the Property were applied. Westpac submits that this letter was responsive to the Applicants’ request of 13 January 2026 and that it was sent within the timeframes stipulated by either Code.

84    On 4 March 2026 a further letter was sent by MinterEllison on behalf of the Respondent. The letter provided a breakdown of Westpac’s final costs in relation to the sale of the Property, informed the Applicants of the total amount of surplus funds that would be available after deduction of those costs and asked them to advise how they would like to receive the surplus funds.

85    On 19 March 2026, the Applicants sent a further letter to MinterEllison, asserting that sufficient accounting records had not been provided and seeking further information and documents in relation to a number of matters including the composition of the debt, transaction ledgers, interest calculations, enforcement charges, the sale of the Property and foreign resident capital gains tax withholding.

86    On 26 March 2026, the Respondent (via MinterEllison) sent a letter in response to the Applicants’ request, which:

(1)    Referred the Applicants to documents and information that had already been provided in previous letters including those of 19 January 2026 and 4 March 2026.

(2)    Provided an outline of the composition of the debt.

(3)    Set out the accounting for the sale proceeds and surplus funds. Copies of the settlement statement and relevant invoices were provided again.

(4)    Addressed the Applicants’ assertion that despite requests being made, arrears statements and/or other documents confirming the arrears position had not been provided prior to enforcement action being taken.

(5)    Provided an explanation for the foreign resident capital gains tax withholding.

(6)    Addressed the Applicants’ request for documents including sale authority and valuations relied upon by Westpac in relation to the sale of the Property.

(7)    Stated the amount of the surplus funds and asked the Applicants to provide information to enable them to release the funds.

87    Westpac submits that the 26 March letter is responsive to the request for information issued by the Applicants on 19 March, and to the extent a response was required under either Code, it complied with those requirements.

88    The Applicants effectively accept that the responses provided by Westpac complied with the relevant obligations under each of the Credit and Banking Codes but said that they could not verify that the information contained within them was correct.

89    The Applicants’ reading of the provisions goes beyond what they can bear. The relevant portions of the Credit Code and the Banking Code require the provision of particular statements and other documents. They do not require proof to the satisfaction of the Applicants as to the underlying figures or costs referred to in those statements to the extent that the Applicants suggest. There are provisions providing mechanisms to dispute certain matters in particular time frames, but these were not invoked or relied upon.

90    Properly construed, the provisions relied upon and set out above, confer rights to specified statements and information. They do not require the credit provider to independently establish, to a debtor’s satisfaction, the correctness of every underlying accounting entry. The Applicants’ contention proceeds on the faulty footing that such an obligation is imposed by those provisions.

91    I therefore accept that the construction advanced by the Applicants is not available as a matter of law. The relevant statements and documents were provided. The claim therefore has no reasonable prospect of success and should be summarily determined.

Other issues

92    In the course of the oral hearing two issues arose which warrant further consideration and comment:

(1)    First: in the County Court Proceeding, the Respondent sought no order as to costs, because it preferred to rely upon its contractual entitlement to recover costs. It is apparent from the affidavit material filed by Westpac in this Court that this involved the charging of Westpac’s legal costs on an indemnity basis. This issue was flagged by Counsel for the Respondent in the course of the hearing before this Court.

(2)    Second: a review of the affidavit material filed by Westpac in this proceeding suggested that Westpac may have already deducted amounts referable to the proceeding in this Court prior to any judicial determination of the costs at all. In the course of the hearing, the Court’s attention was drawn to a letter sent by MinterEllison on behalf of Westpac to the Applicants on 26 March 2026, which among other things, set out the enforcement costs deducted by Westpac from the proceeds of the sale of the Property. In the course of reviewing this letter, the Court identified that one of the MinterEllison invoices attached to the letter, contained line items relating to work completed in respect of a “Federal Court proceeding”.

93    At the conclusion of the hearing of the present application, the parties were asked to file short written submissions in relation to each of the above issues. Each party did so, and I have considered those submissions. The Applicants’ submissions went well beyond the scope of responding to the confined issues raised by the Respondent. I make the following observations:

(1)    In relation to the costs of the County Court Proceeding, the matter was raised in open Court, and the County Court made (or did not make) costs orders reliant upon that disclosure. It was a matter which the Applicants were free to pursue by way of appeal or judicial review. They did not do so. It does not now fall to this Court to separately adjudicate the approach of the County Court. I therefore do not consider any further matter is raised by the County Court costs recovery process. It is not necessary or appropriate to consider the proper approach to the contractual entitlement in that context.

(2)    In relation to legal costs incurred after the County Court Proceeding, in their outline of submissions on costs, Westpac clarified that it had not in fact charged or recovered any costs incurred by Westpac in the present proceeding and does not intend to rely on any contractual entitlement it may have to do so. I have reviewed the Court file and accept that the present proceeding was not filed at the time the relevant costs in the invoice referred to at [92(2)] above were incurred and on that basis accept that the costs do not relate to the present proceeding.

94    That disposes of the additional issues that the parties were asked to address by way of supplementary submission. The Applicants also argued in those submissions that s 107 of the Credit Code provides a “direct statutory basis for determining the dispute”. Section 107 is a provision that has not been pleaded nor raised in the Applicants’ written outline of submissions. In the course of oral submissions, Mrs Borkowski referred to this section only in the context of making the submission that Westpac had failed to provide the requisite documentation to verify enforcement expenses deducted from the proceeds of sale of the Property. Mrs Borkowski said that the enforcement expenses “[w]ere not determined in the possession proceeding, and can be tested under section 107 without contradicting the County Court judgment…They have been unreconciled entries, unsupported expenses. That no accounting was provided for”.

95    By their supplementary submissions in reply, the Applicants assert that Westpac has not supplied the necessary documentation to prove its entitlement to deduct the enforcement expenses from the proceeds of sale of the Property and that Westpac “must establish its asserted contractual entitlement and the reasonable incurrence of the disputed expenses from the evidence it has produced”. However, the Applicants have not pleaded any basis for any argument that the enforcement expenses deducted by Westpac were “in excess of those reasonably incurred by [it]” in contravention of s 107(1) of the Credit Code, and it is not available to be raised by supplementary submission made after the hearing. The case in relation to Westpac’s post-enforcement conduct that was raised by the pleading and written submissions concerned the provision of information which I have summarised above. That claim lacks the prospects necessary to continue.

96    In any event, the Applicants appear to rely on s 107 to attempt to re-agitate the entire question of Westpac’s enforcement process. The Applicants rely (for example) upon an email of 16 June 2023 in which Mrs Borkowski raised the “possibility of accessing an early release of superannuation which could be used for payment” and requested further time and advice as to further actions the Applicants could take to remedy the default. The Applicants assert that the failure to disclose the assessment of that request renders it impossible to determine whether the resulting enforcement action was reasonably necessary, and therefore, whether the resulting expenses were reasonably incurred. Similarly, it is said that it is necessary to identify a “complete operative contractual chain, sufficient account 5046 formation or variation material, adequate invoices classifications…”. This is a further attempt to re-litigate matters that have already been authoritatively determined in the County Court and Supreme Court Proceedings. It would be an abuse of process to permit the re-agitation of matters that have been already determined.

CONCLUSION

97    For the reasons set out above, it is appropriate that the matter be summarily determined. I will hear the parties on costs.

Associate:

Dated:    22 September 2026