Australian Securities & Investments Commission v Westpac Banking Corporation has returned to the Federal Court for an 8-day hearing on the role of benchmarks in responsible lending unsuitability assessments. Background.

ASIC has amended its claim to focus on the general obligation to assess unsuitability under section 128 of the National Credit Act rather than to examine whether particular loans should have been assessed as unsuitable.

ASIC alleges that under Westpac’s Automated Decision System the Serviceability Assessment included in the calculation of the required Minimum Monthly Surplus a figure derived solely from a HEM Benchmark and did not have regard to the consumer’s Declared Living Expenses. It is not limiting its claim to examples where the expenses were higher than the HEM Benchmark.