Where a trial judge's factual findings are based on a witness's reconstruction from documents and usual practice rather than on credibility assessments, an appellate court is in as good a position as the trial judge to assess the probabilities and must do so to afford a true right of appeal. A bank's failure to clearly explain the effect of loan refinancing on existing consumer credit insurance, combined with prior correspondence indicating automatic renewal and failure to follow internal procedures for recording a customer's insurance decision, can constitute misleading or deceptive conduct under s 52 of the Trade Practices Act 1974 (Cth).
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