Corporations Case Law Update: 29 May 2012

Following are brief case notes on Coco v Westpac Banking Corporation [2012] NSWSC 565 (25 May 2012) and Roberts v Investwell Pty Ltd (In liq) [2012] NSWCA 134 (25 May 2012) as follows:

In Coco v Westpac Banking Corporation [2012] NSWSC 565 (25 May 2012) the NSW Supreme Court looked at misleading and deceptive conduct in relation to financial services where a bank officer selling a complex financial product conveys to the customer that the product works in a way significantly more advantageous than the way in which it actually works. Held: that the Australian Securities and Investments Commission (ASIC) legislation requires that the matter be approached on the footing that damages should be assessed as if an order had been made varying the terms of the parties' agreements to reflect how the bank represented they would actually work.

Key legislation considered: Australian Securities and Investments Commission Act 2001 (Cth) ss 12DA(1), 12GF(1) and 12GM(7).

In Roberts v Investwell Pty Ltd (In liq) [2012] NSWCA 134 (25 May 2012) the NSW Court of Appeal dealt with a corporations winding up matter involving payment to director when  the company was company insolvent. The case involved issues of whether the payment was in respect of secured debt the effect of an agreement to grant director security and whether equitable charge. In the case the court looked at the meaning of the terms "Charge" "Unfair preference" as used in the Corporation Act 2001 (Cth).

Key legislation considered: Corporations Act 2001 (Cth) ss 9, 294, 588D, 588FA, 588FC, 588FE, 588FF, Pt 5.3A, Ch2K.

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