Delmenico v Brannelly - [2008] QCA 74

SUPREME COURT OF QUEENSLAND

CITATION:

Delmenico v Brannelly & Anor [2008] QCA 74

PARTIES:

JAMES DELMENICO
(plaintiff/respondent/cross-applicant)
v
PAUL BRANNELLY
(first defendant/first appellant/first cross-respondent)
BRANNELLY FINANCIAL PTY LTD ABN 72 011 021 640
(second defendant/second appellant/second cross-respondent)

FILE NO/S:

Appeal No 7887 of 2007
Appeal No 8510 of 2007
DC No 1917 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal
Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

4 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2008

JUDGES:

Keane and Fraser JJA and Chesterman J
Judgment of the Court

ORDERS:

In Appeal No 7887 of 2007: Appeal dismissed.Appellants to pay the respondent's costs of the appeal assessed on the standard basis 1.

In Application No 8510 of 2007: Application dismissed. Respondent to pay the appellants' costs of the application assessed on the standard basis2.

CATCHWORDS:

TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – STATUTORY REGULATION OF PARTICULAR MATTERS – MISCELLANEOUS STATUTORY REGULATION – where the appellants carried on the business of providing financial services to the public – where the respondent requested from the appellants information about an advertised investment opportunity – where the appellants sent the respondent the information memorandum for the investment accompanied by a cover letter from the appellants – where the appellants' cover letter misstated the security of the investment – whether the conduct of the appellants was misleading or deceptive or likely to mislead or deceive

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the appellants carried on the business of providing financial services to the public – where the appellants misstated the security of an investment opportunity in correspondence sent to the respondent – whether the misstatement amounted to negligent conduct on the part of the appellants – whether reliance by the respondent upon information provided by the appellants was reasonable

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – where the trial judge admitted into evidence the report of an expert witness – where the report was tendered without objection from the appellants – where the appellants claim that the matters addressed by the report had not been pleaded – whether the trial judge erred in admitting the report in to evidence

PROCEDURE – COSTS – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where the respondent made an early offer to settle the action for a sum significantly less than that amount later awarded to him at trial – where at the time of making the offer the respondent had not disclosed documentation later relied upon to support an important aspect of the respondent's case – whether the trial judge erred in refusing the respondent's application for indemnity costs pursuant to r 360 of the Uniform Civil Procedure Rules 1999 (Qld)

Australian Securities and Investments Commission…

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.

Continue reading Delmenico v Brannelly

Details

AGLC: Delmenico v Brannelly [2008] QCA 74
Case: [2008] QCA 74
Decision Date: 4 April 2008

CaseChat Overview and Summary

The matter involved a dispute between Delmenico and Brannelly. The appellants, Delmenico, operated a business providing financial services to the public, while the respondent, Brannelly, had requested information from the appellants regarding an advertised investment opportunity. The appellants provided the respondent with an information memorandum for the investment, accompanied by a cover letter that contained a misstatement about the security of the investment. The respondent initiated proceedings against the appellants, claiming that the misstatement was misleading or deceptive, and alleging negligence on the part of the appellants. The respondent also sought indemnity costs for an offer to settle made early in the proceedings.

The legal issues before the court included whether the appellants' conduct was misleading or deceptive, and whether they owed a duty of care to the respondent. Additionally, the court considered whether the trial judge had erred in admitting an expert witness report into evidence, and if the trial judge was correct in refusing the respondent's application for indemnity costs for an early offer to settle.

The court found that the appellants' conduct was indeed misleading or deceptive, as the misstatement in the cover letter was significant and could have influenced the respondent's investment decision. Furthermore, the court held that the appellants owed a duty of care to the respondent and that their misstatement amounted to negligent conduct. The court found no error in the trial judge's decision to admit the expert witness report, as it was relevant and had been tendered without objection from the appellants. Lastly, the court held that the trial judge did not err in refusing the respondent's application for indemnity costs, as the respondent had not disclosed critical documentation at the time of the offer to settle.

In Appeal No 7887 of 2007, the appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal assessed on the standard basis. In Application No 8510 of 2007, the application was dismissed, and the respondent was ordered to pay the appellants' costs of the application assessed on the standard basis.

Orders

Orders of the court

In Appeal No 7887 of 2007: Appeal dismissed.Appellants to pay the respondent's costs of the appeal assessed on the standard basis 1.

In Application No 8510 of 2007: Application dismissed. Respondent to pay the appellants' costs of the application assessed on the standard basis2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Delmenico v Brannelly & Anor [2008] QCA 74
PARTIES:	JAMES DELMENICO (plaintiff/respondent/cross-applicant) v PAUL BRANNELLY (first defendant/first appellant/first cross-respondent) BRANNELLY FINANCIAL PTY LTD ABN 72 011 021 640 (second defendant/second appellant/second cross-respondent)
FILE NO/S:	Appeal No 7887 of 2007 Appeal No 8510 of 2007 DC No 1917 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	4 April 2008
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2008
JUDGES:	Keane and Fraser JJA and Chesterman J Judgment of the Court
ORDERS:	In Appeal No 7887 of 2007: Appeal dismissed.Appellants to pay the respondent's costs of the appeal assessed on the standard basis 1. In Application No 8510 of 2007: Application dismissed. Respondent to pay the appellants' costs of the application assessed on the standard basis2.
CATCHWORDS:	TRADE AND COMMERCE – OTHER REGULATION OF TRADE OR COMMERCE – STATUTORY REGULATION OF PARTICULAR MATTERS – MISCELLANEOUS STATUTORY REGULATION – where the appellants carried on the business of providing financial services to the public – where the respondent requested from the appellants information about an advertised investment opportunity – where the appellants sent the respondent the information memorandum for the investment accompanied by a cover letter from the appellants – where the appellants' cover letter misstated the security of the investment – whether the conduct of the appellants was misleading or deceptive or likely to mislead or deceive TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – PROFESSIONAL PERSONS – where the appellants carried on the business of providing financial services to the public – where the appellants misstated the security of an investment opportunity in correspondence sent to the respondent – whether the misstatement amounted to negligent conduct on the part of the appellants – whether reliance by the respondent upon information provided by the appellants was reasonable PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – where the trial judge admitted into evidence the report of an expert witness – where the report was tendered without objection from the appellants – where the appellants claim that the matters addressed by the report had not been pleaded – whether the trial judge erred in admitting the report in to evidence PROCEDURE – COSTS – COSTS OF WHOLE ACTION – WHERE MONEY PAID INTO COURT OR OFFER OF COMPROMISE MADE – OFFER OF COMPROMISE MADE – where the respondent made an early offer to settle the action for a sum significantly less than that amount later awarded to him at trial – where at the time of making the offer the respondent had not disclosed documentation later relied upon to support an important aspect of the respondent's case – whether the trial judge erred in refusing the respondent's application for indemnity costs pursuant to r 360 of the Uniform Civil Procedure Rules 1999 (Qld) Australian Securities and Investments Commission…