SUPREME COURT OF QUEENSLAND
CITATION:
Bert v Red 5 Limited [2016] QSC 302
PARTIES:
JEAN-CLAUDE BERT
(first plaintiff)
GABRIELLE BERT
(second plaintiff)
ISABELLE BERT
(third plaintiff)
CAROLINE BERT
(fourth plaintiff)v
RED 5 LIMITED(first defendant)
COLIN JACKSON(second defendant)
FILE NO:
SC No 1467 of 2016
DIVISION:
Trial Division
PROCEEDING:
Trial
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
16 December 2016
DELIVERED AT:
Brisbane
HEARING DATE:
11, 12, 15, 16 and 18 August 2016
JUDGE:
Applegarth J
ORDER:
The claim is dismissed.
CATCHWORDS:
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – where the first defendant, a mining company, developed a gold mine in the Philippines – where the company sought to raise capital, for working capital and exploration purposes, through a private placement of shares – where the plaintiffs claim the company’s chairman, the second defendant, represented to the first plaintiff in a telephone conversation that the purpose of the capital raise was to fund copper exploration – where the plaintiffs were unable to participate in the private placement – where the company’s intentions for the use of the capital being raised changed before the market reopened – where the company disclosed that change of intention to the market before it reopened – where the plaintiffs purchased a large number of shares in the company after the market reopened – where the price of those shares subsequently fell – whether the second defendant made the alleged oral representations – whether the defendant’s conduct was misleading – whether any misleading conduct caused the plaintiffs’ loss
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – DISCLOSURE – where a mining company planned to re-open an open-pit gold mine which was covered by a lake – where the company developed a plan to dewater the lake and to continually dewater the pit over the life of the mine – where, after the lake had been almost completely dewatered, higher than estimated groundwater inflow was encountered – where the dewatering system was still capable of dewatering the groundwater inflow and rainfall – where the plaintiffs claim that if they had been told about the significant quantities of groundwater inflow, they would have sold their shareholding in the company and would not have purchased further shares – where the price of the company’s shares subsequently fell – whether the company was required, under its continuous disclosure obligations in the Corporations Act 2001 (Cth) and the ASX Listing Rules, to disclose to the market that there were significant quantities of groundwater inflow into the mine – whether the company’s failure to disclose that information caused the plaintiffs’ loss
CORPORATIONS – FINANCIAL SERVICES AND MARKETS – MARKET MISCONDUCT AND OTHER PROHIBITED CONDUCT – MISLEADING, DECEPTIVE OR UNCONSCIONABLE CONDUCT – where a mining company planned to re-open an open-pit gold mine which was covered by a lake – where the company developed a plan to dewater the lake and to continually dewater the pit over the…
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- AGLC
- Bert v Red 5 Limited [2016] QSC 302
- Case
- [2016] QSC 302
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the chairman made oral representations to one plaintiff about the purpose of a capital raising, whether any such representations were misleading, and if misleading conduct caused the plaintiffs’ loss. The court also had to decide whether the company was required to disclose significant quantities of groundwater inflow to the market under its continuous disclosure obligations, and whether any failure to disclose caused the plaintiffs’ loss. Additionally, the court considered whether the company's statements about the completion of dewatering were misleading or deceptive, and whether any misleading conduct caused the plaintiffs’ loss.
The court found that the chairman did not make the alleged representations about the purpose of the capital raising. The court also found that the company was not required to disclose the significant quantities of groundwater inflow, and that its statements about the completion of dewatering were not misleading. The plaintiffs' claims were dismissed on the basis that they failed to establish that the defendants engaged in misleading or deceptive conduct, or breached any continuous disclosure obligations.
The court dismissed the claim in its entirety, with no orders for costs.
Orders
Orders of the court
The claim is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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