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Dealing -v- General Advice -v- Personal Advice

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Join a panel of senior lawyers from Holley Nethercote, and General Manager, Kath Bowler, as they dissect the recent judgement which widens the interpretation of “personal advice” and raises serious questions about the appropriateness of some general advice sales models.

Background: The Federal Court full bench found in favour of ASIC over Westpac in its recent decision, reversing an earlier judgement.  The Court found that Westpac’s phone-based sales campaigns constituted personal advice.  Chief Justice Allsop said, at paragraph 5:

Westpac attempted, assiduously, to get the customer to make a decision to move funds to BT without giving personal financial product advice as defined in the legislation.  It failed. It gave personal advice, because when the telephone exchanges are considered as a whole and in their context, including importantly the “closing” on the telephone by getting the decision made during the call, there was an implied recommendation in each call that the customer should accept the service to move accounts funds into his or her BT account carrying with it an implied statement of opinion that this step would meet and fulfill the concerns and objectives the customer had enunciated on the call in answer to deliberate questions by the callers about paying too much in fees and enhancing manageability.  This was personal advice…

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