Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187

Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187

Westpac’s campaign and telephone calls constituted personal financial product advice because reasonable customers, after being asked about and discussing their objectives and concerns, could expect that the advice provided—culminating in a recommendation to consolidate into BT—took those personal objectives into account. As such, Westpac contravened ss 961B, 961K, 912A(1)(a), 912A(1)(b), 912A(1)(c), and 946A of the Corporations Act by giving personal advice without fulfilling both the best interests and disclosure obligations, and by failing to ensure services were provided efficiently, honestly and fairly.

Jurisdiction
Australia
Judgment Date
28 October 2019
Procedural Posture
Civil Appeal / Full Federal Court on Appeal From Primary Judgment
Outcome
Appeal allowed; cross-appeal dismissed
Legal Topics
['financial Product Advice' 'personal Advice Vs General Advice' 'licensee Obligations Efficiently, Honestly and Fairly' 'best Interests Duty' 'superannuation Fund Consolidation Campaigns' 'compliance With S 912 a, S 961 B, S 961 K of the Corporations Act']
['corporations Law' 'financial Services Law' 'superannuation Law'] ['financial Product Advice' 'personal Advice Vs General Advice' 'licensee Obligations Efficiently, Honestly and Fairly' 'best Interests Duty' 'superannuation Fund Consolidation Campaigns' 'compliance With S 912 A, S 961 B, S 961 K of the Corporations Act']

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Procedural Posture

Civil Appeal / Full Federal Court on Appeal From Primary Judgment

Legal Issues

  1. 1 ["Whether Westpac's communications constituted 'financial product advice' under s 766B(1) of the Corporations Act 2001 (Cth)" "Whether the advice provided was 'personal advice' or 'general advice' under s 766B(3) and (4)" 'Whether Westpac failed to act in the best interests of customers (s 961B) in the course of the campaign' 'Whether Westpac failed to ensure services were provided efficiently, honestly and fairly (s 912A(1)(a))' 'Whether contraventions of s 946A (failure to provide Statement of Advice) and s 961K occurred']

Ratio Decidendi

Westpac’s campaign and telephone calls constituted personal financial product advice because reasonable customers, after being asked about and discussing their objectives and concerns, could expect that the advice provided—culminating in a recommendation to consolidate into BT—took those personal objectives into account. As such, Westpac contravened ss 961B, 961K, 912A(1)(a), 912A(1)(b), 912A(1)(c), and 946A of the Corporations Act by giving personal advice without fulfilling both the best interests and disclosure obligations, and by failing to ensure services were provided efficiently, honestly and fairly.

Court Disposition

Appeal allowed; cross-appeal dismissed

Orders

  • ['The appeal be allowed with costs.' 'The cross-appeal be dismissed with costs.' 'Order 1 made by the Court on 7 February 2019 be set aside.' 'The appellant to provide, within 7 days, draft short minutes for further declarations and orders.' 'Parties to file, within 14 days, draft or competing draft short minutes...