Capaan v Joss, Managing Director, Westpac and Ors [No 2] Capaan and Anor v Westpac Savings Bank Ltd [No 2]

The New South Wales Court of Appeal heard appeals in two related matters concerning allegations of misleading and deceptive conduct. The appellants, Mr Capaan and Ms Capaan, brought proceedings against Westpac Savings Bank Ltd and its managing director, Mr Joss, alleging they had been induced to enter into a loan agreement and a related guarantee by representations that were misleading and deceptive. The primary dispute revolved around the nature and effect of certain statements made by Westpac representatives concerning the loan and its security.

The central legal issues before the Court of Appeal were whether the representations made by Westpac constituted misleading or deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) and the *Contracts Review Act 1980* (NSW), and whether the loan agreement and guarantee were therefore voidable. The court was required to consider the meaning and effect of the statements made by Westpac, the reliance placed upon them by the appellants, and whether these statements were objectively misleading or deceptive in the circumstances.

In its reasoning, the Court of Appeal analysed the evidence regarding the communications between the parties. It applied the principles established in cases concerning misleading and deceptive conduct, focusing on whether the representations, viewed objectively, were likely to mislead or deceive a reasonable person in the position of the appellants. The court found that the statements made by Westpac, when considered in their full context, did not amount to misleading or deceptive conduct. The court also considered the *Contracts Review Act* and determined that the circumstances did not warrant intervention under that legislation.

The Court of Appeal dismissed the appeals, upholding the decisions of the lower court.