Bernstrom v National Australia Bank Ltd

Bernstrom (the applicant) brought proceedings against National Australia Bank Ltd (the respondent) in the High Court of Australia. The dispute concerned the respondent's alleged contravention of s 52 of the *Trade Practices Act 1974* (Cth) (now s 18 of the *Australian Consumer Law*). The applicant alleged that the respondent engaged in misleading or deceptive conduct by representing that it would not enforce a guarantee given by the applicant, when it subsequently did so.

The central legal issue before the High Court was whether the applicant had established a contravention of s 52 of the *Trade Practices Act 1974* (Cth). This required the court to consider the nature of the representations made by the respondent, whether those representations were misleading or deceptive in the circumstances, and whether the applicant had suffered loss or damage as a result of any such conduct. The court also had to determine the appropriate remedies, if any, to be awarded.

The High Court, in a joint judgment by Gummow and Kirby JJ, found that the applicant had failed to establish a contravention of s 52. Their Honours reasoned that the evidence did not support the applicant's assertion that the respondent had made representations that it would not enforce the guarantee. Instead, the court concluded that the communications between the parties, when viewed objectively, did not amount to misleading or deceptive conduct. The principles applied focused on the objective assessment of representations and the requirement for a causal link between the alleged misleading conduct and the applicant's loss.

The High Court dismissed the applicant's appeal and affirmed the decision of the primary judge.