Legal Research
Cases
Westpac Banking Corporation v Jamieson

Westpac Banking Corporation v Jamieson

Link copied

Case Copied 10 April 2015 76 min read

Contents

On this page

SUPREME COURT OF QUEENSLAND

CITATION:

Westpac Banking Corporation v Jamieson & Ors [2015] QCA 50

PARTIES:

WESTPAC BANKING CORPORATION
ABN 33 007 457 171
(appellant/cross respondent)
v
MARK BRYAN JAMIESON
(first respondent/first cross appellant)
LORRELL BERNADETTE JAMIESON
(second respondent/second cross appellant)
JAMIESON INVESTMENTS QLD PTY LTD ACN 103 273 070 as trustee for The M & L SUPER FUND
(third cross appellant)

FILE NO/S:

Appeal No 3234 of 2014
SC No 3536 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 April 2015

DELIVERED AT:

Brisbane

HEARING DATES:

18 September 2014; 19 September 2014

JUDGES:

Margaret McMurdo P and Morrison JA and Applegarth J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. The appeal filed 4 April 2014 be dismissed.

2. The cross-appeals filed 22 April 2014 be dismissed.

3. The first respondent’s/cross-appellant’s application filed 10 September 2014 be dismissed.

4. The parties have leave to make submissions as to costs in accordance with Practice Direction 3 of 2013.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where a bank was found to have given negligent and misleading investment advice to a customer – where the advice did not adequately disclose that more than 10 per cent of the investor’s wealth would be at risk if the investment performed poorly – where the investment performed poorly, partly as a result of the GFC, and the customer was liable for interest under loans made to finance the investment – whether the bank is responsible for the total loss suffered by the customer – whether the rule in Potts v Miller should have been applied to assess the loss – whether the primary judge erred in considering what the customer would have done had he not been induced to make the investment and associated loans – whether the investor would have borrowed and invested in a tax minimising scheme and suffered a loss on that alternative investment

CORPORATIONS – FINANCIAL SERVICES AND MARKETS – FINANCIAL PRODUCTS – GENERALLY – where a bank advised a customer to borrow to contribute to a self-managed superannuation fund – whether bank was negligent in failing to adequately advise the customer of the detriments of using borrowed money to make undeductible contributions

DAMAGES – INCIDENCE OF TAXATION AFFECTING DAMAGES – where the primary judge found that an award of damages would be assessable income under the Income Tax Assessment Act 1997 (Cth) – where the primary judge “grossed-up” the amount of damages on account of the tax treatment of the award – whether the figure used by the primary judge as the customer’s net loss was correct – whether the methodology used by the primary judge to “gross-up” the assessed loss was correct – whether the “grossed-up” award of damages should be “grossed-up” ad infinitum

Australian Securities and Investments Commission Act 2001 (Cth), s 12DA(1), s 12ED
Civil Liability Act 2003 (Qld), s 11(1)(a), s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Westpac Banking Corporation v Jamieson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] QCA 50
Decision Date: 10 April 2015

CaseChat Overview and Summary

Westpac Banking Corporation sought to appeal against a finding of negligence in providing investment advice to a customer, Mr Jamieson, and the subsequent assessment of damages. The appeal raised issues concerning the bank’s responsibility for the full extent of the loss suffered by Mr Jamieson and the application of the rule in Potts v Miller to assess the loss. It was also questioned whether the primary judge had erred in considering what Mr Jamieson would have done had he not been induced to make the investment and associated loans, including whether he would have borrowed and invested in a tax minimising scheme and suffered a loss on that alternative investment.

The court considered the bank’s duty to disclose the risks associated with the investment, particularly that more than 10 per cent of Mr Jamieson’s wealth would be at risk if the investment performed poorly. The court concluded that the bank was indeed negligent in its advice and thus responsible for the total loss suffered by Mr Jamieson. The court found that the primary judge did not err in assessing damages by considering what Mr Jamieson would have done had he not been induced to make the investment. Regarding the “grossing up” of the damages to account for the tax treatment of the award, the court determined that the primary judge correctly assessed the amount of damages and the methodology used to account for the tax treatment was also correct. The court further held that the damages should not be “grossed-up” ad infinitum.

The appeal, cross-appeals, and the application for leave to appeal were dismissed, and the parties were granted leave to make submissions as to costs.

Orders

Orders of the court

1. The appeal filed 4 April 2014 be dismissed.

2. The cross-appeals filed 22 April 2014 be dismissed.

3. The first respondent’s/cross-appellant’s application filed 10 September 2014 be dismissed.

4. The parties have leave to make submissions as to costs in accordance with Practice Direction 3 of 2013.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Westpac Banking Corporation v Jamieson & Ors [2015] QCA 50
PARTIES:	WESTPAC BANKING CORPORATION ABN 33 007 457 171 (appellant/cross respondent) v MARK BRYAN JAMIESON (first respondent/first cross appellant) LORRELL BERNADETTE JAMIESON (second respondent/second cross appellant) JAMIESON INVESTMENTS QLD PTY LTD ACN 103 273 070 as trustee for The M & L SUPER FUND (third cross appellant)
FILE NO/S:	Appeal No 3234 of 2014 SC No 3536 of 2011
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	10 April 2015
DELIVERED AT:	Brisbane
HEARING DATES:	18 September 2014; 19 September 2014
JUDGES:	Margaret McMurdo P and Morrison JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal filed 4 April 2014 be dismissed. 2. The cross-appeals filed 22 April 2014 be dismissed. 3. The first respondent’s/cross-appellant’s application filed 10 September 2014 be dismissed. 4. The parties have leave to make submissions as to costs in accordance with Practice Direction 3 of 2013.
CATCHWORDS:	DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS – where a bank was found to have given negligent and misleading investment advice to a customer – where the advice did not adequately disclose that more than 10 per cent of the investor’s wealth would be at risk if the investment performed poorly – where the investment performed poorly, partly as a result of the GFC, and the customer was liable for interest under loans made to finance the investment – whether the bank is responsible for the total loss suffered by the customer – whether the rule in Potts v Miller should have been applied to assess the loss – whether the primary judge erred in considering what the customer would have done had he not been induced to make the investment and associated loans – whether the investor would have borrowed and invested in a tax minimising scheme and suffered a loss on that alternative investment CORPORATIONS – FINANCIAL SERVICES AND MARKETS – FINANCIAL PRODUCTS – GENERALLY – where a bank advised a customer to borrow to contribute to a self-managed superannuation fund – whether bank was negligent in failing to adequately advise the customer of the detriments of using borrowed money to make undeductible contributions DAMAGES – INCIDENCE OF TAXATION AFFECTING DAMAGES – where the primary judge found that an award of damages would be assessable income under the Income Tax Assessment Act 1997 (Cth) – where the primary judge “grossed-up” the amount of damages on account of the tax treatment of the award – whether the figure used by the primary judge as the customer’s net loss was correct – whether the methodology used by the primary judge to “gross-up” the assessed loss was correct – whether the “grossed-up” award of damages should be “grossed-up” ad infinitum Australian Securities and Investments Commission Act 2001 (Cth), s 12DA(1), s 12ED Civil Liability Act 2003 (Qld), s 11(1)(a), s…