Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investment Commission v Westpac Securities Administration Limited [2019] FCAFC 187 Appeal from: Australian Securities and Investments Commission v Westpac Securities Administration Limited, in the matter of Westpac Securities Administration Limited [2018] FCA 2078

File number: NSD 204 of 2019

Judges: ALLSOP CJ, JAGOT AND O'BRYAN JJ

Date of judgment: 28 October 2019

Catchwords: CORPORATIONS – where Westpac conducted campaign to encourage customers to roll over funds held in external superannuation accounts into their existing Westpac accounts – whether Westpac's campaign involved the provision of a "recommendation" or "statement of opinion" amounting to "financial product advice" – whether Westpac's campaign involved the provision of "personal advice" or "general advice" within the meaning of s 766B of the Corporations Act 2001 (Cth) (the Act) – where primary judge found that Westpac provided general financial product advice – "personal advice" was given because a reasonable person might expect the callers to have considered the objectives of the customers in making the recommendation to accept the rollover service – consequent contraventions of ss 912A(1)(b) and (c), 946A, 961B(1) and 961K(1) of the Act – appeal allowed CORPORATIONS – whether Westpac failed to do all things necessary to ensure financial services provided "efficiently, honestly and fairly" – where primary judge found contraventions of s 912A(1)(a) of the Act – Westpac did not act efficiently, honestly, or fairly in conducting a campaign with the aim of getting its customers to make a decision after the provision of only "general advice" where that decision could only prudently be made having regard to information personal to the customers and the superannuation accounts – whether, if Westpac had been found to have given only "general advice", an alternative case on s 912A(1)(a) was run before the primary judge – no alternative case articulated because the case before the primary judge was predicated on the likelihood or fact of "personal advice" – cross-appeal dismissed