Westpac Banking Corporation v Lee

Westpac Banking Corporation and another party appealed to the Court of Appeal of New South Wales against a decision concerning alleged misleading or deceptive conduct in relation to a financial product. The respondents, who had not read the documents provided by the appellants concerning this complex product, claimed they had suffered loss due to misrepresentations about a capital protection feature, despite having expressed strong reservations about their creditworthiness.

The central legal issues before the Court of Appeal were whether the appellants had engaged in misleading or deceptive conduct in contravention of section 12DA of the *Australian Securities and Investments Commission Act 2001* (Cth), and whether the appellants' conduct had caused the respondents' loss. The Court was required to consider the weight to be given to post-facto evidence in assessing these issues.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court reasoned that the appellants' conduct, viewed objectively, was misleading or deceptive. It was held that the appellants had failed to adequately address the respondents' reservations and had not taken sufficient steps to ensure the respondents understood the nature and risks of the financial product, particularly concerning the capital protection feature. The Court found that the appellants' conduct had caused the loss suffered by the respondents. Consequently, the appellants were ordered to pay the respondents' costs.