Coco v Westpac Banking Corporation [2010] NSWCA 305

New South Wales Court of Appeal

CITATION: Coco v Westpac Banking Corporation [2010] NSWCA 305

HEARING DATE(S): 29 October 2010

JUDGMENT DATE: 12 November 2010

JUDGMENT OF: Allsop P at 1; Giles JA at 37; Sackville AJA at 38

1. Set aside the separate questions, the answers thereto and the declaration made by the Court on 14 May 2010. 2. Declare that: DECISION: "On the proper construction of the Westpac Guarantee Portfolio Service Asset Allocation Advisory Agreement between the appellant and the respondent, the definition of "Fixed Income Portfolio Value" in the definitions in the Asset Allocation Rules in the said agreement should be construed such that the part of the definition being 'which is to be calculated by multiplying the number of Units invested in zero coupon bonds by the market value for such zero coupon bonds' means that the number of Units invested in zero coupon bonds is multiplied by the market value per Unit for such zero coupon bonds, which latter value is to be derived by dividing the market value of the zero coupon bonds at the relevant date by the number of Units sold in order to invest in the zero coupon bonds". 3. Otherwise dismiss the appeal. 4. The appellant pay the respondent's costs.

CATCHWORDS: CONTRACT – construction – commercial agreement – structured equity investment – Guaranteed Portfolio Service – meaning of "fixed income portfolio value" – meaning and effect of formula to calculate value of zero coupon bonds

LEGISLATION CITED: Australian Securities and Investments Commission Act 2001 (Cth), s 12GM Supreme Court Act 1970 (NSW), s 75

CATEGORY: Principal judgment

Coco v Westpac Banking Corporation [2010] NSWSC 457 Forster v Jododex Australia Pty Ltd [1972] HCA 61; 129 CLR 421 CASES CITED: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; 264 ALR 15 Ross v Ice TV Pty Ltd [2010] NSWCA 272 Whitlock v Brew (No 2) [1967] VR 803 Whitlock v Brew [1968] HCA 71; 118 CLR 445