Carnemolla and Anor v Bendigo & Adelaide Bank Ltd and Ors

The applicants, Carnemolla and Anor, brought proceedings against Bendigo & Adelaide Bank Ltd and Ors. The dispute concerned the applicants' claim that the Bank had engaged in misleading and deceptive conduct in contravention of section 18 of the Australian Consumer Law (ACL), and that the Bank had breached its duty of care to them. The matter came before the High Court of Australia on appeal from the Full Court of the Federal Court of Australia.

The High Court was required to determine whether the Bank had engaged in misleading or deceptive conduct by representing that the applicants' loan facility was "fully drawn" when it was not, and whether this conduct caused the applicants loss. Further, the Court had to consider whether the Bank owed the applicants a duty of care in relation to the provision of financial advice and whether that duty had been breached.

Gageler J found that the Bank's representation that the loan facility was "fully drawn" was not misleading or deceptive because the applicants were aware of the actual state of the facility. His Honour reasoned that for conduct to be misleading or deceptive, it must be capable of leading a person into error, and in this instance, the applicants were not led into error. Regarding the duty of care, Gageler J held that the Bank did not owe the applicants a duty of care in relation to the provision of financial advice, as the relationship between the parties was primarily that of a lender and borrower, and the Bank's conduct did not extend beyond the ordinary scope of that relationship.

The appeal was dismissed.