Agnish Pty Limited v Folio Invest Pty Limited (No 4)

Agnish Pty Limited brought proceedings against Folio Invest Pty Limited and others in the Federal Court of Australia, alleging that representations made prior to entering into a loan agreement were misleading or deceptive, contravening s 18 of the Australian Consumer Law (ACL). The court had to determine whether the representations made by Folio Invest, and its representatives, were misleading or deceptive, and thus in breach of s 18 of the ACL. The applicant argued that it was induced into entering into a loan agreement based on these misleading representations, which resulted in significant financial loss.

The court examined each of the pleaded representations made by Folio Invest and its representatives, assessing whether they were misleading or deceptive in the context of the overall communications. The court found that there was a reasonable basis for each representation at the time it was made, considering the surrounding circumstances and information provided. The disclaimer clauses in the emails and brochure were considered as part of the overall context, but did not negate the reasonable basis for the representations. The court concluded that the applicant had failed to establish that the representations were misleading or deceptive.

Accordingly, the court dismissed the originating application, finding that the applicant had not made out its claims under s 18 of the ACL. The applicant was ordered to pay the costs of Folio Invest as agreed or taxed.

1. The originating application filed on 12 June 2018 be dismissed.
2. The applicant pay the third respondent’s costs, as agreed or taxed.