Lee v Westpac Banking Corporation [2012] NSWSC 899

Lee v Westpac Banking Corporation [2012] NSWSC 899

The conduct of Westpac's representative, Mr Nazvanov, amounted to misleading or deceptive conduct under s 12DA of the ASIC Act by making representations (including by silence) suggesting the GPS product had the same features and protections as previous PEL investments and could be exited with capital guarantee after one year, when in fact it differed significantly. These misrepresentations induced the plaintiffs to enter into the agreements, and reliance was established. Damages and declaratory relief were appropriate.

Jurisdiction
Australia
Judgment Date
09 August 2012
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Plaintiffs succeed; damages and declaratory relief granted; cross-claim dismissed.
Legal Topics
['misleading or Deceptive Conduct' 'financial Services' 'damages' 'rescission' 'asic Act S 12 Da' 'causation' 'reliance' 'cross Claim']
['commercial Law' 'consumer Law' 'financial Services Law'] ['misleading or Deceptive Conduct' 'financial Services' 'damages' 'rescission' 'asic Act S 12 Da' 'causation' 'reliance' 'cross Claim']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 ["Whether the conduct of Westpac's representative amounted to misleading or deceptive conduct under s 12DA of the ASIC Act 2001 (Cth) in relation to marketing and advice about the GPS financial product." 'Whether representations by silence regarding GPS product features constituted misleading or deceptive conduct.' 'Whether damages should be awarded and the agreements declared void and unenforceable.']

Ratio Decidendi

The conduct of Westpac's representative, Mr Nazvanov, amounted to misleading or deceptive conduct under s 12DA of the ASIC Act by making representations (including by silence) suggesting the GPS product had the same features and protections as previous PEL investments and could be exited with capital guarantee after one year, when in fact it differed significantly. These misrepresentations induced the plaintiffs to enter into the agreements, and reliance was established. Damages and declaratory relief were appropriate.

Court Disposition

Plaintiffs succeed; damages and declaratory relief granted; cross-claim dismissed.

Orders

  • ['The GPS agreements and guarantee executed on 26 June 2007 are declared void and unenforceable.' 'Judgment for the plaintiffs against the defendants for damages in the sum of $380,086.48.' "The defendants' cross-claim is dismissed." "Defendants to pay plaintiffs' costs as agreed or assessed." 'Parties to bring in...