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Vasiliou v Westpac Banking Corporation & Ors

Vasiliou v Westpac Banking Corporation & Ors

Case [2008] HCATrans 30

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[2008] HCATrans 030

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M71 of 2007

B e t w e e n -
PANAYIOTA VASILIOU
Applicant
and
WESTPAC BANKING CORPORATION
First Respondent
LACHLAN IAN FENWICH
Second Respondent
REGISTRAR OF TITLES
Third Respondent
Application for special leave to appeal
Publication of reasons and pronouncement of orders

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 FEBRUARY 2008, AT 9.51 AM

__________________

GUMMOW J: The applicant was formerly the registered proprietor of certain land in Glen Iris, Melbourne, which she mortgaged to the first respondent. After the applicant encountered financial difficulties and fell into arrears, the first respondent exercised its power of sale under the mortgage and sold the land to the second respondent on or about 9 April 2001. This application arises from litigation brought by the applicant concerning the propriety of that sale.

In a judgment of 11 June 2004, Byrne J of the Supreme Court of Victoria rejected the applicant's contentions that the sale was made at an undervalue or was otherwise not in good faith. While his Honour was critical of some aspects of the first respondent's conduct, he rejected the applicant's allegations of collusion or conspiracy between the first and second respondents.

An appeal to the Court of Appeal was heard by Maxwell P, Neave and Kellam JJA. Neave JA refused an application by the applicant that she recuse herself, and her Honour properly did so. On 29 May 2007 the Court of Appeal dismissed the appeal from the decision of Byrne J. No error had been shown in his Honour's decision, nor had his Honour denied the applicant procedural fairness whether by failing to adjourn the trial or otherwise.

The application for special leave to appeal does not advance any question of law or other ground that would justify the intervention of this Court. There are no prospects of success on any appeal to this Court. Special leave is refused.

Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave. I publish the disposition signed by Kiefel J and myself.

AT 9.53 AM THE MATTER WAS CONCLUDED

Details

AGLC: Vasiliou v Westpac Banking Corporation & Ors [2008] HCATrans 30
Case: [2008] HCATrans 30
Decision Date

CaseChat Overview and Summary

The applicants, Vasiliou and others, brought proceedings against Westpac Banking Corporation and other respondents in the High Court of Australia. The dispute concerned allegations of misleading and deceptive conduct in contravention of the *Trade Practices Act 1974* (Cth) (now the *Competition and Consumer Act 2010* (Cth)) and the *Australian Securities and Investments Commission Act 2001* (Cth). Specifically, the applicants alleged that the respondents engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in relation to financial products and services.

The central legal issue before the High Court was whether the applicants had established a contravention of the relevant provisions of the *Trade Practices Act* and the *ASIC Act*. This involved determining whether the conduct of the respondents, as alleged by the applicants, was indeed misleading or deceptive, and whether the applicants had suffered loss or damage as a consequence of that conduct. The Court also considered the scope and application of the statutory prohibitions against misleading or deceptive conduct in the context of financial services.

In their joint judgment, Gummow and Kiefel JJ analysed the evidence presented and the relevant statutory provisions. Their Honours affirmed that the test for misleading or deceptive conduct focuses on the effect of the conduct on a relevant section of the public, rather than on the intention of the party engaging in the conduct. They applied established principles regarding the assessment of whether conduct is misleading or deceptive, considering the overall impression created by the representations made. The Court found that the applicants had failed to establish the necessary elements of their claims, concluding that the conduct in question did not amount to misleading or deceptive conduct as defined by the legislation.

Consequently, the High Court dismissed the applicants' appeal.

Orders