Comanos v Westpac Banking Corporation

In *Comanos v Westpac Banking Corporation*, the New South Wales Court of Appeal considered a dispute between a guarantor, Mr Comanos, and Westpac Banking Corporation concerning a guarantee of a company's debts. Mr Comanos sought to set aside the guarantee, alleging that Westpac had engaged in misleading or deceptive conduct in contravention of section 52 of the *Trade Practices Act 1974* (Cth) and the equivalent provision in New South Wales legislation.

The primary legal issues before the Court of Appeal were whether Westpac had made misleading or deceptive representations to Mr Comanos regarding the company's financial position and the extent of his liability under the guarantee, and if so, whether these representations caused Mr Comanos loss. Specifically, the court had to determine if Westpac's conduct, in the context of the information provided and not provided to Mr Comanos, amounted to a contravention of the relevant consumer protection provisions.

The Court of Appeal found that Westpac had not engaged in misleading or deceptive conduct. The court reasoned that Westpac had provided Mr Comanos with sufficient information to understand the nature of the guarantee and the company's financial position. It was held that Westpac was not under a duty to volunteer information about every possible risk or contingency, and that Mr Comanos, as a businessman, was expected to make his own inquiries and assess the risks involved. The court applied the principles that a party seeking to set aside a guarantee based on misleading conduct must demonstrate that the representations were in fact misleading or deceptive, and that they materially induced the guarantor to enter into the agreement.

The appeal was dismissed, with the Court of Appeal upholding the primary judge's decision that the guarantee was valid and enforceable.