Jamieson v Westpac Banking Corporation - [2014] QSC 32

SUPREME COURT OF QUEENSLAND

CITATION:

Jamieson & Ors v Westpac [2014] QSC 32

PARTIES:

MARK BRYAN JAMIESON

(first plaintiff)

and

LORRELL BERNADETTE JAMIESON

(second plaintiff)

and

JAMIESON INVESTMENTS QLD PTY LTD ACN 103 273 070 as trustee for The M & L SUPER FUND

(third plaintiff)

v

WESTPAC BANKING CORPORATION ABN 33 007 457 171

(defendant)

FILE NO/S:

3536/11

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

7 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

2013

JUDGE:

Jackson J

ORDER:

The orders of the court are that:

1           Direct the parties to submit a calculation or further submissions as to the amount of the judgment for damages in accordance with paragraph [347] of the reasons on or before 14 March 2014.

2           Judgment for the defendant against the third plaintiff on the third plaintiff’s claim.

3           Direct the parties make any submissions on costs in writing not to exceed five pages in length on or before 14 March 2014.

4           Liberty to apply.

CATCHWORDS:

DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS - where the defendant gave advice to the first and second plaintiffs to enter complex financial investments, including superannuation arrangements – where the plaintiffs allege the manner of giving advice was negligent, in breach of contract or in contravention of the Australian Securities and Investment Commission Act 2001 (Cth) – where losses may be attributable to general market decline – whether the rule in Potts v Miller should be applied – whether another approach to assessment of damages is preferable – whether the likelihood of the plaintiffs entering into similar or alternative transactions should be included in the assessment of damages – whether ongoing interest liability for one of the loans acquired by the first and second plaintiffs is recoverable

DAMAGES – GENERAL PRINCIPLES – INCIDENCE OF TAXATION AFFECTING DAMAGES – where the amount claimed was the gross amount of loss – where the losses had previously been claimed as tax deductions – whether the award of damages should be “grossed-up”

CORPORATIONS – FINANCIAL SERVICES AND MARKETS – FINANCIAL PRODUCTS – GENERALLY - where defendant bank gave advice to first and second plaintiffs regarding a self-managed superannuation fund – where the third plaintiff was trustee of the self-managed superannuation fund created – where financial product advice was given to first and second plaintiffs – whether ss 945A, 945B and 947B of the Corporations Act 2001 (Cth) applied to the defendant in respect of the third plaintiff – whether the defendant breached its obligations under those sections in respect of the first and second plaintiffs

COUNSEL:

CC Heyworth Smith and S Hogg for the plaintiffs

APJ Collin and GJ Watson for the defendant

SOLICITORS:

Schultz Toomey O’Brien for the plaintiffs

Sparke Helmore for the defendant

JACKSON J: In May and June 2007, Mark and Lorrell Jamieson and the trustee of their self-managed superannuation fund made investments based on a written statement of advice. The statement of advice was prepared by Robert Tindall who was a financial planner in the employ…

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.

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Details

Case: [2014] QSC 32
Decision Date: 7 March 2014

CaseChat Overview and Summary

The case of Jamieson v Westpac Banking Corporation involves the plaintiffs, who were clients of the defendant bank, alleging that the bank's advice regarding complex financial investments, including superannuation arrangements, was negligent, breached contractual obligations, or contravened the Australian Securities and Investment Commission Act 2001. The court was required to determine the appropriate assessment of damages for the plaintiffs' losses, whether the rule in Potts v Miller should apply, and whether other factors such as the likelihood of entering into similar transactions or ongoing interest liabilities should be considered in the damages assessment. The court also had to decide if the damages award should be grossed-up to account for tax implications, as the plaintiffs had previously claimed the losses as tax deductions. Additionally, the court needed to consider whether the bank breached its obligations under sections 945A, 945B, and 947B of the Corporations Act 2001 in respect of the third plaintiff, who was the trustee of a self-managed superannuation fund.

The court considered the applicability of the rule in Potts v Miller, which generally prevents recovery of losses due to general market decline, and explored whether an alternative approach to damages assessment was more appropriate. The court examined the relevance of the likelihood of the plaintiffs entering into similar or alternative transactions and the recoverability of ongoing interest liabilities. It also assessed whether the damages award should be adjusted to account for the tax implications of the claimed losses. Regarding the application of sections 945A, 945B, and 947B of the Corporations Act 2001, the court needed to determine if the bank breached its obligations in relation to the third plaintiff, who was the trustee of a self-managed superannuation fund.

The court directed the parties to submit further submissions on the calculation of the damages judgment, considering the issues raised, and set a deadline for these submissions. The court also granted judgment in favour of the defendant on the third plaintiff’s claim and requested written submissions on costs. The final orders mandated the submission of a calculation or further submissions on damages by a specified date and directed the parties to limit their costs submissions to five pages. The court reserved liberty to apply for further directions or orders as necessary.

The court's orders include directing the parties to submit a calculation or further submissions regarding the damages judgment by a specified date, granting judgment in favour of the defendant on the third plaintiff's claim, and requesting written submissions on costs within a defined length. The court's decision indicates a careful consideration of the complex issues involved in the assessment of damages and the application of relevant legal principles.

Orders

Orders of the court

The orders of the court are that:

1 Direct the parties to submit a calculation or further submissions as to the amount of the judgment for damages in accordance with paragraph [347] of the reasons on or before 14 March 2014.

2 Judgment for the defendant against the third plaintiff on the third plaintiff’s claim.

3 Direct the parties make any submissions on costs in writing not to exceed five pages in length on or before 14 March 2014.

4 Liberty to apply.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jamieson & Ors v Westpac [2014] QSC 32
PARTIES:	MARK BRYAN JAMIESON (first plaintiff) and LORRELL BERNADETTE JAMIESON (second plaintiff) and JAMIESON INVESTMENTS QLD PTY LTD ACN 103 273 070 as trustee for The M & L SUPER FUND (third plaintiff) v WESTPAC BANKING CORPORATION ABN 33 007 457 171 (defendant)
FILE NO/S:	3536/11
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	7 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	2013
JUDGE:	Jackson J
ORDER:	The orders of the court are that: 1 Direct the parties to submit a calculation or further submissions as to the amount of the judgment for damages in accordance with paragraph [347] of the reasons on or before 14 March 2014. 2 Judgment for the defendant against the third plaintiff on the third plaintiff’s claim. 3 Direct the parties make any submissions on costs in writing not to exceed five pages in length on or before 14 March 2014. 4 Liberty to apply.
CATCHWORDS:	DAMAGES – GENERAL PRINCIPLES – OTHER MATTERS - where the defendant gave advice to the first and second plaintiffs to enter complex financial investments, including superannuation arrangements – where the plaintiffs allege the manner of giving advice was negligent, in breach of contract or in contravention of the Australian Securities and Investment Commission Act 2001 (Cth) – where losses may be attributable to general market decline – whether the rule in Potts v Miller should be applied – whether another approach to assessment of damages is preferable – whether the likelihood of the plaintiffs entering into similar or alternative transactions should be included in the assessment of damages – whether ongoing interest liability for one of the loans acquired by the first and second plaintiffs is recoverable DAMAGES – GENERAL PRINCIPLES – INCIDENCE OF TAXATION AFFECTING DAMAGES – where the amount claimed was the gross amount of loss – where the losses had previously been claimed as tax deductions – whether the award of damages should be “grossed-up” CORPORATIONS – FINANCIAL SERVICES AND MARKETS – FINANCIAL PRODUCTS – GENERALLY - where defendant bank gave advice to first and second plaintiffs regarding a self-managed superannuation fund – where the third plaintiff was trustee of the self-managed superannuation fund created – where financial product advice was given to first and second plaintiffs – whether ss 945A, 945B and 947B of the Corporations Act 2001 (Cth) applied to the defendant in respect of the third plaintiff – whether the defendant breached its obligations under those sections in respect of the first and second plaintiffs
COUNSEL:	CC Heyworth Smith and S Hogg for the plaintiffs APJ Collin and GJ Watson for the defendant
SOLICITORS:	Schultz Toomey O’Brien for the plaintiffs Sparke Helmore for the defendant