ASIC unhappy with court ruling on Westpac’s financial services breach

The Australian 12:00am January 4, 2019

Ben Butler


The corporate regulator is considering whether to appeal against a Federal Court judgment that Westpac breached its financial services licence by asking customers to roll their super into an account at the bank but stopped short of finding it gave them personal advice.

In the judgment handed down on December 21, judge Jacqueline Gleeson said the phone campaign, in which customers were urged to move their superannuation into accounts at Westpac subsidiary BT, breached the bank’s overarching obligation to provide financial services “efficiently, honestly and fairly”.

However, she stopped short of finding any of the 15 case studies advanced by the Australian Securities & Investments Commission were provided with personal advice, which would have resulted in further breaches of the law.

Westpac escaped without a ­financial penalty because, in a legislative anomaly ASIC has urged the government to fix, failing to provide financial services efficiently, honestly and fairly ­attracts no fine even though it is a breach of the Corporations Act.

ASIC launched the lawsuit in December 2016 after an investigation of the activities of Westpac’s “Super Activation Team” between April 2014 and October the following year.

It claimed the bank gave personal financial advice during calls, contrary to the licences of the two subsidiaries responsible for the phone campaign.

However, Westpac told the court that “no customer could have been under any illusion that Westpac was anything other than self-interested” when it offered to roll their existing super funds into a BT fund.

Justice Gleeson rejected this argument, saying that even though a customer would understand Westpac was acting in its own interest, he or she would also expect it was acting in theirs.

But she said the advice given did not amount to personal ­advice as call centre staff did not take the circumstances of each customer into account when ­trying to get them to transfer their super.

The case returns to court on February 7.