Mar 15, 2018 - I make this statement on the basis of my own knowledge, save where ... new car in order to be able to wor
WIT.0001 .0012.0001
WITNESS STATEMENT
Nalini Devi Thiruvangadam
Name: Address: o ccupation:
Home Duties
Date:
15 March 2018
I, Nalini Devi Thiruvangadam, Home Duties, of say as follows: 1.
I make this statement on the basis of my own knowledge, save where otherwise stated. Where I make statements based on information provided by others, I believe such information to be true.
2.
I was born in Malaysia. I came to Australia approximately 19 years ago on a student visa to study to be a personal care attendant.
3.
Until approximately August 2011 , I worked full-time, first as a personal care assistant in a high-care facility and later as a coordinator in a low-care facility.
4.
In about August 2011, I started to work on a casual basis as a home carer. I worked approximately 21 hours per fortnight, earning approximately $350 after tax each fortnight, but I sometimes did an extra shift if I was offered one. Copies of some sample payslips, being those which I showed the representative of the car dealer when I purchased my car, are attached to this statement and marked NDT-
1. 5.
I also received income in the form of a single parent payment, the Family Tax Benefit A & B payment and some other allowances from Centrelink. As at 30 July 2012, this totalled approximately $600 per fortnight. A Centrelink Income Statement dated 30 July 2012 is attached to this statement and marked NDT-2.
Signature: 29008374
~_
_ _ __ Witness:
WIT.0001.0012.0002
During thi s period , I also received some fin ancial assistance from time to time from my fam ily mem bers, including my uncle. 6.
At this time, I was also undertaking studies at TAFE in pathology. However, I have not at any time been able to find a job in the pathology field.
7.
To the best of my recollection, in approximately September 2012, I had a serious fall and I hurt both of my knees. Since that time, I have been unable to work, and my only source of income has been an allowance from Centrelink.
Attempts to obtain car finance
8.
In 2011, my car, a Mitsubishi Magna, suffered some fire damage. I had the Mitsubishi Magna repaired after the fire damage, but the mechanic advised me to only drive it short distances, like to the next suburb to pick up and drop off my kids to school. He said the car would not last long so for that reason, I decided I should replace the car.
9.
Over the course of a few months, I contacted a number of banks to see if they would assist me to obtain car finance. I began by calling Westpac, because I already had an account with them. A Westpac staff member told me by phone that Westpac would not approve my loan application , because I had problems with my cred it. The staff member told me to get a copy of my credit file, however I did not do this as I was sure that the staff member would be referring to a cred it card that I had with Citibank. The credit limit of that credit card was $1,500, and I had used the full credit limit. I believe that Westpac was aware that I held this credit card because I made repayments towards the credit card via direct debit from my Westpac account. I also tried calling CBA, ANZ and NAB, but none of these banks would provide me with finance. In addition , I called a few finance companies that I had seen online. These companies also refused to provide finance to me.
10.
After having spoken with those banks and the various finance companies, I called some car dealers near where I lived to see if any of them would assist me with finance. I was not able to find a car dealer that would help me.
Entry into the loan agreement
Signature: 29008374
_ _ _ _ Witnes
WIT.0001 .0012.0003
11.
On 26 July 20 12, I called a car dealership approximately 50 kilometres from my home (the Dealership). I found the contact details for the Dealership on the internet. When I called, I was put through to a staff member, who described himself as the Manager (the Manager). I said to the Manager that I needed a car, because the car I was driving had been damaged. I said to the Manager that I needed a new car in order to be able to work, because I had to drive to the homes of the people for whom I was caring . It was important to me that I had a reliable car for work. I also told the Manager that I needed a car to take my children to school. In addition, I told the Manager that I had tried to get a loan from banks and car dealerships in my area, but that none of them would help me. The Manager said to me words to the effect of "now listen carefully - come to my dealership and you'll go back home with a car tonight". I said to him that I did not want to drive all the way from _
to the Dealership for no reason, but he told me that he was
very confident that he could help me get a car. I understood from that conversation that I would be receiving a new car. It was important to me that I got a new car and not a used car because my current car at the time, the Mitsubishi Magna, was a second hand car and it had been damaged by fire and been repaired many times and was unreliable. He asked me to oome into the Dealership, and to bring some documents with me, including my driver's licence, payslips, Centrelink card and bank card. 12.
After the phone call, I called one of my friends, and asked her if she would come to the Dealership with me, because it was a long way away and I did not know the area at all. I also picked up my sons, who were then aged 12 and 17, from school. I then drove with my friend and my sons to the Dealership.
13.
When I arrived at the Dealership, it was already quite late in the afternoon, and the Dealership was about to close. A staff member greeted me at the Dealership and took me, my sons and my friend to the lounge area of the Dealership. That staff member told me not to worry about how late it was. The Manager then greeted me, my sons and my friend in the lounge area and he introduced himself as the Manager of the Dealership and we shook hands. The Manager took me into his office, and my sons and my friend waited in the lounge area. I reca ll that the Manager asked me some questions about how much I was paid in my job as a
Signature: 29008374
_ _ _ _ _ Witnes
WIT.0001.0012.0004
home carer. He asked me if I owned a property, and I told him that I was renting and was paying approximately $1 ,300 per month. Whil e I was in the Manager's office, he telephoned a man who I later learned was named _ 14.
The Manager was friendly during his conversation with "
and because of this,
I thought that they knew each other quite well. I could hear what the Manager was saying to _
but not what "
was saying to him. From what I could hear of
the conversation, and the nature of what the Manager was saying, I understood that it was _
job to approve the loan.
I believed that there was some
connection between the Manager and ~ not only because of the tone of the conversation but that the Manager had been so adamant that my loan would be approved. 15.
At some point while I was in the Manager's office, the Manager pointed out a car to me through the office window. The car was a Ford Focus Ambiente. The Manager told me that that was the car that I was buying. One of my sons and I had chosen another type of Ford online before we arrived at the Dealership, and the car that the Manager painted out was not the car that I wanted, but the Manager was adamant that I wou ld be buying that car. I later learned that the Ford Focus Ambiente was a used or "demo" car, although I had understood from the phone call earlier in the day that I would be buying a new car. I explain this further below.
16.
After a while, the Manager asked me to leave his office and wait in the lounge area. I waited outside his office with my sons and my friend . While I was in the lounge area , the Manager left his office and went to the outside car yard. I saw him go to the Ford Focus Ambiente and open the car door and put the key in the engine . I believe he did this to check the odometer reading . He was outside in the car yard for a few minutes . The Manager then returned to his office. While I was waiting , I could see into the Manager's office through a glass window. He then started talking on the phone to someone for a long time, which I estimate to have been about 1 ~
17.
or 2 hours.
After the Manager finished speaking on the phone, he called me into his office again . He asked me for the documents I had brought with me. I showed the Manager my Westpac bank card , Centrelink card, driver's licence and my payslips .
Signature: 29008374
_____ Witness·
WIT.0001 .0012.0005
I think that he took a copy of my driver's licence and my payslips .. The payslips are those marked NOT -1, to which I referred above. 18.
On either the first or the second occasion that I was in the Manager's office, the Manager asked me whether I had "any other pay" or "any other income". I told him that I received payments from Centrelink, and I believe that he may have asked me to show him some documentation . I also told the Manager that I received some money from my uncle, about $300 a month or something like that, and that my uncle was helping to support my younger son and me whenever I experienced financial difficulties. The Manager then asked again whether there was "any other pay" or "any other income" that he could add to the loan application forms, but I told him that this was all I had.
19.
On either the first or the second occasion that I was in the Manager's office, the Manager also asked me about my expenses. I told him that I had a credit card, that lowed $1 ,500 on that credit card, and that I could not payoff that amount. I also told the Manager again that I lived in rented accommodation with my sons, and that I had to pay rent.
20 .
I also recall showing the Manager my Westpac bank card . He used the details on my Westpac bank card to fill out a direct debit request for me. He gave me a copy of a document entitled "Direct Debit Request Service Agreement", which set out this arrangement. A copy of that document, which the Manager gave me at the end of the meeting, is attached to this statement and marked NOT -3.
21 .
The Manager also told me that I would have to take out insurance for the car. I said to the Manager that I had insurance for my Mitsubishi Magna from Allianz Insurance. I telephoned Allianz Insurance from the Manager's office to tell Allianz Insurance that I was buying a new car. The Manager disconnected my phone calli with Allianz Insurance by pressing the button to hang up the phone. The Manager told me that I had to cancel my existing policy, and take out a new policy through him, that would also be with Allianz Insurance. The new policy was more expensive than my previous policy _The Manager did not explain to me what type of insurance I was buying , or what it would cover.
Signature 29008374
- - - --
Witness:
WIT.0001.0012.0006
22 .
While I was talking to the Manager in his office, he had been typing on the computer. He then printed out various documents, which he asked me to sign.
I signed the documents. He did not give me time to read the documents. I felt pressured to sign the documents because it was getting late, it was dark outside, and my children and my friend were waiting for me. At some point during my meeting with the Manager he said "you've got the car, you can take it home now". 23.
After I signed the forms, I took the car for a test drive. I only took the car for a short test drive because it was dark by that time. The staff member at the Dealership who took me on the test drive told me that it was not a new car. That is when I found out that the Ford Focus Ambiente was a used or a demo car. Then when I got home that evening , I read in a document that was provided to me by the Manager at the end of the meeting, entitled "Contract for the Purchase of a Demonstrator Vehicle" , that the car was a used or a demo car. A copy of that document is attached to this statement and marked NDT-4.
24.
The Manager then wrote down " me that I should call "
name for me on a business card, and he told
if I needed another loan in the future. He also told my
friend that if she ever needed a car, she should ca ll him. A copy of the business card that the Manager gave me with _
number on the back is attached to this
statement and marked NOT-S.
25.
The Manager gave me various documents to take home, including the "Direct Debit Request Service Agreement" (NDT-3). One of those documents was an unsigned version of a document entitled "Fixed Rate Loan Agreem ent Details". That document is attached to this statement and marked NOT-6. I am not. sure why I was given an unsigned version of the "Fixed Rate Loan Agreement Details".
26.
After my conversation with the Manager, I understood that I had been given a loan for about $21,000, and I knew that my repayments were to be made within five years. However, I did not really understand anything else about the loan. I did not understand that the Manager would be receiving a commission for setting up my loan. He did not explain any commissions to me during our meeting. He also did not explain what type of insurance policy I was going to get, just that I needed to get my insurance through Allianz. He did not tell me that I was being sold Ford Motor Equity Insurance, whi ch is explained further below.
Signature: 29008374
_ _ _ _ _ Witness:
WIT.0001.0012.0007
27.
I told the Manager that I did not want to drive the car home, because the car was unfamiliar to me and it was late at night. We organised that someone from the Dealership would deliver the car to me a couple of days later.
Conduct after the entry into the loan agreement
28 .
After I got home from the Dealership that night, I looked over the documents that the Manager had given me, including the unsigned version of the document entitled "Fixed Rate Loan Agreement Details" (NOT-G). I saw that the loan repayments were listed as about $260/fortnight.
When I real ised this, I got very worried
because I did not think I could afford to pay that much, given I also had to pay rent and my living expenses. I was also surprised by how high the interest rate was I had thought that Ford dealerships offered low interest rates, after seeing promotions by Ford on the internet. I was also surprised that the car was a used or demo model, as I had told the Manager that I wanted a brand new car. 29 .
On the following day, 27 July 2012, I telephon ed th e Manager. I said to him that I did not want to go ahead with buying the car. I said to the Manager that I was worried about making the loan repayments . I also said to the Manager that I had wanted to buy a new car, but this was a used or demo car. The Manager told me that I could not say that I did not want the car, because I had already signed all of the documents. He said words to the effect that "the car now belongs to you and you have to take it".
30 .
The Manager also said that I needed to show him proof of my Centrelink payments and that I need to settle my Citibank credit card debt. I told him that I would send him a copy of a Centrelink statement, but I told him that I could not afford to settle that debt. The email I sent him on 27 July 2012 is attached to this statement and marked NDT-7.
31 .
The Manager responded to this email on 30 July 2012, asking me to get a statement from Centrelink. That email is included in NDT-7.
32.
I sent him an email with the Centrelink Income Statement on 31 July 2012, which is NDT-2 to this statement.
33 .
I received delivery of the car on or around 30 July 2012.
Signature: 29008374
_ _ _ _ _ Witness·
WIT.0001 .0012.0008
34.
On or about 30 July 2012, I received a letlerfrom the Bank of Melbourne attaching an Account Summary. A copy of. that letter is attached to this statement and marked NOT·S . I understood the information contained in the Account Summary to reflect the information in the unsigned version of the document entitled "Fixed Rate Loan Agreement Details" which the Manager had given me (NOT·S).
35.
When I received the letter, I became concerned because I realised that I would have to make repayments every fortnight on a Monday, but my Centrelink payments came through on a Wednesday or Thursday. This is because the letter said that the loan would start on 13 August 2012, which was a Monday. I rang the Manager to discuss this issue and he said that I would just have to borrow money from a family member or someone else and then pay them back when I received my payment from Centrelink. He said that if I did not do so, the bank would charge me interest.
36 .
Around this time, being a few days after I had signed the loan agreement, I received two letters by post from Ford. The first letter was dated 26 July 2012 which enclosed a Policy Schedule, Interim Certificate of Insurance and Product Disclosure Statement for my myFord Motor Equity Insurance (policy number . A copy of that letter and the policy schedule and product disclosure statement is attached to this statement and marked NOT·9. The second letter was dated 27 July 2012 and enclosed a policy schedule and product disclosure statement for my MyFord Insurance Policy (policy number _
. That policy schedu le states that I had been insured for comprehensive
insurance. A copy of that letter, the policy schedule and product disclosure statement is attached to this statement and marked NOT·10. 37.
On 9 August 2012, I received a letter from the Bank of Melbourne entitled "Statement of Account" . A copy of that letter is attached to this statement and marked NOT·11 .
Difficulties making repayments
38.
As set out in NOT-a, my first loan -repayment was due on 13 August 2012. I made my first loan repayment on that date. It was difficult for me to make the first repayment, because making a payment of about $260 was quite a lot for me.
Signature: 29008374
_ ___ Witness·
WIT.0001.0012.0009
39.
To the best of my recollection, in approximately September 2012, I had a serious fall, and I hurt both of my knees. I was not able to return to work and , in February 2013, my employer terminated my casual employment. In or around February 2013, I signed up to an employment agency through Centrelink to find new work, but I did not receive any paid work from this.
40.
I called the Bank of Melbourne around this time to tell them that I was having difficulties making repayments because I was not able to work and, later, because I had lost my job. I then made an application to the Bank of Melbourne for considera tion of my hardship. I understood from the telephone conversation with the Bank of Melbourne that I was going to receive hardship on my loan repayments for six months, but when I received a letter, it was six weeks, and not six months.
41.
That is, on 18 April 2013, I received a leUer from St George which confirmed that I had been granted an extension to make repayments . The letter said that I would not be required to make fortnightly repayments between 22 April 2013 and 3 June 2013, and that the fortnightly repayments of $259.75 would begin again on 17 June 2013. A copy of that letter is attached to this statement and marked NOT-12.
42.
After my period of extension was finished in June 2013 onwards , I kept trying to make repayments. I was not always able to do this. There were also a number of other occasions where I missed loan repayments, and/or made informal arrangements with Bank of Melbourne to ask for more time to make the loan payments. Between 3 December 2013 and 10 March 2014 and 19 June 2014 and 11 September 2014, I could not make any payments towards my loan (as to which, see NDT-13 below). Between 14 December 2015 and 7 March 2016, I could only afford to make one payment of $600 on 4 February 2016. The repayments I was able to make were made because I did not pay my renta l or utility bills and paid the car loan instead. I also sought help from my brother and uncle and sold some jewellery. I explain these matters further below.
43 .
I tried very hard to make the payments, because I was worried about the consequences of not making my repayments. Sometimes, when I failed to make repayments, I received calls or letters from people who I understood to work for the Bank of Melbourne. The calls and letters seemed to come from different people at different times, and from different areas within the bank. A number of times,
Signature: 29008374
_ _ _ _ _
Witnes
WIT.0001.0012.0010
bank staff members said things like "you better be ready, we are coming to your doorstep to collect your car", or told me that if I did not pay $20,000, they would take my car. I often cried over the phone when I spoke with the bank staff members because they were placing a lot of pressure on me to make repayments on my loan when I could not afford to . I was so worried that they would come to my house that my sons and I sometimes went to stay at my uncle's house for about one week or two weeks until I could organise the next payment. The people from the bank used to call me late in the evening and I was afraid to pick up the phone most of the time. Over time, I became depressed and began to have suicidal thoughts because of the phone calls from the Bank of Melbourne.
to_
I recall that sometime in 2015 or 2016, a person from the Bank of Melbourne called
44.
me and transferred me
I understood _
to be the same person that
the Manager at the Dealership had spoken with, because _
said to me words
to the effect of "I approved your loan and I expect you to keep up with the repayments. You have let me down" .•
said that if I did not make the payments,
he would send someone to tow my car. I begged _
many times during this
phone call for the Bank of Melbourne not to tow my car, but he was very aggressive when he spoke to me and this made me upset and afraid that the Bank of Melbourne would take my car without warning. I also recall that in sometime in 2015 or 2016, I called the Bank of Melbourne and
45.
asked if I could make another application for hardship because I could not afford my loan repayments. To the best of my recollection , I was told by the bank staff members that I could not have a further grant of hardship because they had al ready .provided me with 6 months of hardship and that was the maximum amount that I was allowed. 46.
As I mentioned, on a few occasions, I was able to make bigger repayments to the Bank of Melbourne with the help of my uncie, or my brother in the United Kingdom. However, these bigger repayments were not common, and I strugg led with making repayments until the end. I also sold off some of my jewellery that my mother had given me and my son's jewellery to try to recover some additional money. I was ashamed when I sold my mother's jewellery because it was very sentimental to
Signature: 29008374
WIT.0001.0012.0011
me. In addition to selling my jewellery, I also obtained several "pay day" loans, but I can't remember how many I got and how much each of these loans were. 47 .
I felt that I had to prioritise my repayments to the Bank of Melbourne above my other financial commitments. I made my car loan repayments before I paid my electricity bills. Sometimes, I did not pay rent so that I could afford my car loan repayments. At one point, I fell two or three months behind on my rental payments because of the car loan repayments. I had a very good relationship with my landlord, as I had been living in my rental property for 12 or 13 years . However, the rea l estate agent of the rental property took me to Victorian Civil and Administrative Tribunal to recover my unpaid rent. I understood why the real estate agent had to do this, but I did not have any other options. I had to payoff the most pressing bills first.
48 .
On or about 17 August 2017, I received a letter from the Bank of Melbourne entitled "Statement of Account". The Statement of Account sets out my payment history with
re~pect
to the car loan. A copy of the letter is attached to this statement and
marked NDT-13. Condition of the car
49.
In addition to the problems that I had with making repayments, I also had some problems with the cond ition of the car. The car worked well when I first bought it, but in approximately early 2013, it started jerking or shaking when I drove it. On two or three occasions, the car stopped completely in the middle of the road.
50 .
I called the Manager at the Dealership to ask what I should do. The Manager told me that there was nothing wrong with the car, and that something was wrong with my driving instead. I later called the Manager again to tell him that I was still having problems with the car. I was concerned about taking the car back to the Dealership to be serviced, because it was very far away, and because I had also had a bad experience in my previous phone calls with the Dealership. Specifically, I had tried to call the Manager a number of times but I was not put through to him and he would not call me back. A staff member at the Dealership told me that I should take the car to the Ford dealership at Essendon Fields. In approximately mid-2013, I took the car to the Ford dealership at Essendon Fields. The Ford dealership at
Signature: 29008374
_ _ _ _ _ Witness:
WIT.0001.0012.0012
Essendon Fields replaced the clutch or the transmission, I cannot remember exactly which one. The car worked OK for a while after that, but after approximately nine months it had problems again and now it jerks when I drive it. Remediation
51 .
In approximately mid-2017, I called Ford Australia to tell them that I was still having problems with the car. When I explained my situation, the Ford employee told me that I should call Legal Aid in Aid in
I spoke to a staff member at Legal
and they referred me to Consumer Action. I provided
Consumer Action with authority to act on my behalf on 22 August 2017. 52.
In approximately September 2017, at Consumer Action's suggestion, I obtained a condition report with respect to the car. The condition report was provided by Torque Tyres & Automotive, under the heading of 'Tax Invoice". A copy of the report is attached to this statement and marked NDT-14. The report says, amongst other things , "transmission clutches dragging, causing vehicle to stall and hesitate from stopped position, upon further investigation found common issue with clutches in transmission becoming faulty even shattering, possibly damaging more internal components etc. this situation is a dismantle and quote".
53.
On 4 October 2017, Consumer Action sent a letter to Bank of Melbourne on my behalf. The letter was copied to the Australian Securities and Investments Commission (ASIC) . In that letter, Consumer Action requested that I be repaid al l of the money that I had paid under the loan contract (totalling $31,802.37), and that I be released from any further liability under the loan contract. A copy of the letter is attached to this statement and marked NDT-15.
54.
On 1 November 2017, the Bank of Melbourne responded, acknowledging that the car loan "should not have been approved", and made two alternative offers of settlement. A copy of the letter is attached to this statement and marked NDT·16.
55.
I was surprised when Consumer Action showed that letter to me, because it said that my loan application "was noted as no existing liabilities". I did not say to the Manager at the Dealership that I had no existing liabilities - I told him that I had a credit card, that I owed $1 ,500 on the credit card, and that I could not payoff that amount. The letter also said that I was living with my uncle at the time I applied for
Signature: 29008374
-----
Witness·
WIT.0001.0012.0013
the loan, and so no rent was taken into consideration . I had actually told the Manager that I lived in rented accommodation with my sons, and that I had to pay rent.
56.
There followed some further correspondence between the Bank of Melbourne and Consumer Action.
57.
On 21 November 2017, Consumer Action sent a letter to the Bank of Melbourne, in which one of the offers of settlement made in the 1 November 2017 letter was accepted . By this offer, the Bank of Melbourne repaid $20,000 to me, and I kept the car. A copy of the email is attached to this statement and marked NOT-17. I received payment of the $20,000 within approximately a week of accepting the offer.
58.
Despite the Bank of Melbourne's acknowledgement that my car loan application "should not have been approved", I have not received reimbursem ent of the other $11,802.37 that I paid under the loan agreement, or reimbursement of any of the costs that I paid to have the car repaired. However, !I feel as though I can breathe again now that I do not have to make loan repayments.
59 .
The car continues to have mechanical problems. However, Ford recently extended the warranty on the car until April 2019. I understand that Ford did so because the transmission issues with this car have been the subject of an ACee proceeding and a class action. After the warranty was extended , I was able to have the car's transmission replaced . However the problems with the transmission have returned because the car now jerks when I drive it.
Signature: 29008374
- - - - Witness:
WIT.0001.0012.0014
Signed:
Signature: 29008374
Witn
