Supreme Court
New South Wales
Medium Neutral Citation: Salvatore Coco -v- Westpac Banking Corporation [2012] NSWSC 565 Hearing dates: 7, 8 & 9 May 2012 Decision date: 25 May 2012 Jurisdiction: Equity Division - Commercial List Before: Hammerschlag J Decision: Judgment for the plaintiff for $2,701,238
Catchwords: MISLEADING AND DECEPTIVE CONDUCT - Australian Securities and Investments Commission Act 2001 (Cth) s 12DA(1) - in relation to financial services where bank officer selling a complex financial product conveys to the customer that the product works in a way significantly more advantageous than the way in which it actually works - RELIEF - Australian Securities and Investments Commission Act 2001 (Cth) ss 12GF(1) and 12GM(7) - matter approached on the footing that damages should be assessed as if an order had been made varying the terms of the parties' agreements to reflect how the bank represented they would actually work Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Cases Cited: Coco v Westpac Banking Corporation [2010] NSWSC 457
Coco v Westpac Banking Corporation [2010] NSWCA 305
Watson v Foxman (1995) 49 NSWLR 315
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109\
Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1
Chappel v Hart (1998) 195 CLR 232Category: Principal judgment Parties: Salvatore Coco - Plaintiff
Westpac Banking Corporation - DefendantRepresentation: Counsel:
J.C. Kelly SC with E.T. Finnane - Plaintiff
I.M. Jackman SC with C. Colquhoun - Defendant
Solicitors:
Uther Webster & Evans - Plaintiff
King & Wood Mallesons - Defendant
File Number(s): 2009/298753
Judgment
INTRODUCTION
HIS HONOUR:This is a case in which I am satisfied that the defendant bank ("the Bank") misled the plaintiff in a material respect as to how a complex, structured financial product (described as Westpac Guaranteed Portfolio Service or GPS), which the Bank was wishing to sell to him, worked. The plaintiff entered into the GPS with the Bank on 19 June 2007. In fact, the GPS worked in a manner significantly less advantageous to the plaintiff than the bank officer responsible for selling it to the plaintiff had represented to him.
The case illustrates the importance of officers responsible for selling complex financial products on behalf of institutions understanding how such products work and the importance of such officers not conveying incorrect information about such products to buyers.
Section 12DA(1) of the Australian Securities and Investments Commission Act 2001 (Cth) ("the Act"), which is in Subdivision D, provides that a person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.
Section 12GF(1) of the Act provides, relevantly, that a person who suffers loss or damage by conduct of another person that contravenes a provision of Subdivision D may recover the amount of the loss…
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- Case
- [2012] NSWSC 565
- Decision Date
CaseChat Overview and Summary
The primary legal issues were whether Westpac's conduct amounted to misleading or deceptive conduct under section 12DA(1) of the Act and, if so, what relief Mr Coco was entitled to under sections 12GF(1) and 12GM(7). The court had to determine the nature and scope of the misleading representations, the effect of those representations on Mr Coco's decision to enter into the contract, and the appropriate remedy for the misleading conduct. It was necessary to assess the losses suffered by Mr Coco as if an order had been made varying the terms of the parties' agreements to reflect how the bank represented they would actually work.
The court found that Westpac's conduct did amount to misleading or deceptive conduct under section 12DA(1). The representations made by the Westpac officer were significant and misleading, and they influenced Mr Coco's decision to enter into the contract. The court considered the losses suffered by Mr Coco and ordered Westpac to pay damages to Mr Coco as if an order had been made varying the terms of the parties' agreements. The court also ordered Westpac to pay costs.
Orders
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Background
Background to the litigation
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Evidence
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Decision
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Ratio Decidendi
Legal Principle Established
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