Australian Securities and Investments Commission v Commonwealth Bank of Australia [2022] FCA 1422

FEDERAL COURT OF AUSTRALIA

Australian Securities and Investments Commission v Commonwealth Bank of Australia [2022] FCA 1422 File number(s): QUD 96 of 2021

Judgment of: DOWNES J

Date of judgment: 29 November 2022

Catchwords: CORPORATIONS – alleged contraventions of ss 12DA and 12DB Australian Securities and Investments Commission Act 2001 (Cth) and s 912A(1) Corporations Act 2001 (Cth) – where bank failed to waive monthly account fees in relation to certain accounts in breach of its contract with customers – whether a notation on the customer account statement or passbook that a fee had been charged was an implied representation by the bank that it had a contractual entitlement to charge that fee – whether misleading or deceptive conduct – whether a contractual promise to waive a fee carried with it an implied representation that the bank had and would have adequate systems and processes to ensure that the fee would be waived – whether false or misleading representations in connection with supply of financial services – consideration of characteristics of ordinary and reasonable member of the class of customers to whom representations were alleged to have been made – whether bank's conduct was a failure to do all things necessary to ensure that the financial services covered by its licence were provided honestly, efficiently and fairly – where bank introduced measures and improved its systems in order to assist in detecting and preventing issues associated with the failure to waive fees – where bank took steps to investigate the cause of the errors; designed, implemented and tested an appropriate mechanism for rectifying errors and preventing their recurrence; identified all customers and customer accounts affected by the errors; and remediated all affected customers, where possible, or made contributions to charity – claims dismissed