Deep Investments Pty Ltd v Casey (No 2) - [2018] FCA 726

FEDERAL COURT OF AUSTRALIA
Deep Investments Pty Ltd v Casey (No 2) [2018] FCA 726

File number: NSD 2189 of 2016

Judge: GLEESON J

Date of judgment: 22 May 2018

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s12DA

Cases cited:
Deep Investments Pty Ltd v Casey [2018] FCA 60

Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510

Date of last submissions: 11 May 2018 (First, Second and Third Respondents)

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: No Catchwords

Number of paragraphs: 11

Counsel for the Applicant: Mr P Dunnning QC with Dr W Wild

Solicitor for the Applicant: k2 Law

Counsel for the First, Second and Third Respondents: Mr S Donaldson SC with Mr M Friedgut

Solicitor for the First, Second and Third Respondents: MinterEllison

Counsel for the Fourth Respondent: Mr AC Harding

Solicitor for the Fourth Respondent: K&L Gates

Counsel for the Fifth, Sixth and Seventh Respondents: Mr A McGrath SC with Mr SE Gray

Solicitor for the Fifth, Sixth and Seventh Respondents: Moray & Agnew

REASONS FOR JUDGMENT

NSD 2189 of 2016

BETWEEN:
DEEP INVESTMENTS PTY LTD ACN 000 339 319

Applicant

AND:
KEVIN CASEY

First Respondent

PAUL CLARKE

Second Respondent

CBC PARTNERS PTY LTD ACN 104 815 483 (and others named in the Schedule)

Third Respondent

GLEESON J:

On 4 May 2018, I gave my judgment on the respondents’ various interlocutory applications for summary dismissal of the proceeding or, alternatively, for orders that the applicant’s statement of claim be struck out in whole or part: Deep Investments Pty Ltd v Casey [2018] FCA 603.
By order 2, I granted leave to the applicant to file and serve an amended statement of claim which repleads, relevantly, the claims based on contraventions of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth).
By order 3, made on that date, I granted the parties liberty to apply for further orders to give effect to these reasons.
In the course of the various parties exercising that liberty, it was brought to my attention that there is an inconsistency between [13(9)] and [228] of my reasons for judgment, concerning whether the applicant should be granted leave to replead the claims based on contraventions of s 12DA. There is an error in [13(9)], which should read:
The statement of claim does not disclose a reasonable claim or cause of action in relation to the alleged breaches of fiduciary duty by the CBC respondents and Mr Emanuel concerning avoidance of conflicts or the alleged contraventions of s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (“ASIC Act”), however, leave should be granted to replead those claims or causes of action.
I will correct my 4 May 2018 reasons accordingly.
On behalf of the fourth respondent, Mr Emanuel, it was also observed that I had not dealt with a submission to the effect that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Deep Investments Pty Ltd v Casey (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] FCA 726
Decision Date: 22 May 2018

CaseChat Overview and Summary

Deep Investments Pty Ltd sought to amend its statement of claim in a proceeding against several respondents, including Kevin Casey, Paul Clarke, and CBC Partners Pty Ltd. The applicant alleged that the respondents had engaged in misleading and deceptive conduct in relation to financial services, in contravention of section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth). The court had to decide whether the applicant should be granted leave to replead the claims based on contraventions of section 12DA. The court also had to determine if the alleged conduct of Kevin Emanuel, the fourth respondent, could be considered conduct in relation to financial services within the meaning of section 12DA(1).

The court considered the legislative history and context of section 12DA(1) and found that it was not limited to conduct occurring in the course of the provision of financial services. The court held that it was not prepared to conclude, on a summary basis, that Emanuel's conduct, which arguably concerned the provision of financial services by Simon Robinson and Raven Capital Pty Ltd, could not be conduct in relation to financial services within the meaning of section 12DA(1). Therefore, the court granted leave to the applicant to replead the claims based on contraventions of section 12DA.

The court corrected an error in its earlier judgment and clarified that the statement of claim did not disclose a reasonable claim or cause of action in relation to the alleged breaches of fiduciary duty by the CBC respondents and Emanuel concerning avoidance of conflicts or the alleged contraventions of section 12DA. However, leave should be granted to replead those claims or causes of action. The court also noted that it had not dealt with a submission that section 12DA was not capable of being engaged in relation to the conduct alleged against Emanuel. However, the court found that it was not obvious that section 12DA(1) must be limited to conduct that occurs in the course of the provision of financial services, or that it could not apply to a person's conduct that concerns financial services provided by a third party.

The court granted leave to the applicant to file and serve an amended statement of claim which repleads, relevantly, the claims based on contraventions of section 12DA of the Australian Securities and Investments Commission Act 2001 (Cth). The court also clarified that the statement of claim did not disclose a reasonable claim or cause of action in relation to the alleged breaches of fiduciary duty by the CBC respondents and Emanuel concerning avoidance of conflicts or the alleged contraventions of section 12DA, but leave should be granted to replead those claims or causes of action. The court further held that it was not prepared to conclude, on a summary basis, that Emanuel's conduct, which arguably concerned the provision of financial services by Simon Robinson and Raven Capital Pty Ltd, could not be conduct in relation to financial services within the meaning of section 12DA(1).

Orders