Kim v Hodgson Faraday Pty Limited

FEDERAL COURT OF AUSTRALIA

Kim v Hodgson Faraday Pty Limited [2022] FCA 1190  

File number:

NSD 529 of 2016

Judgment of:

JAGOT J

Date of judgment:

7 October 2022

Catchwords:

REPRESENTATIVE PROCEEDINGS — misleading and deceptive conduct arising from sale of financial products overseas — where respondent sold dormant companies with Australian Financial Services licences — inferences of involvement — respondent not wilfully blind to misconduct — application dismissed  

Legislation:

Australian Securities and Investments Commission Act 2001 (Cth) ss 5(2), 12DA, 12GF(1), 12GH(2)

Corporations Act 2001 (Cth) s 79

Cases cited:

Australian Competition and Consumer Commission v Michigan Group Pty Ltd [2002] FCA 1439

Australian Securities and Investments Commission v ActiveSuper Pty Ltd (in liq) [2015] FCA 342; (2015) 235 FCR 181

Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1

Compaq Computer Australia Pty Ltd v Merry [1998] FCA 968; (1998) 157 ALR 1

Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Keller v LED Technologies Pty Ltd [2010] FCAFC 55; (2010) 185 FCR 449

Quinlivan v Australian Competition and Consumer Commission [2004] FCAFC 175; (2004) 160 FCR 1

The Zamora (No 2) [1921] 1 AC 801

Yorke v Lucas [1985] HCA 65; (1985) 158 CLR 661

Zervas v Burkitt (No 2) [2019] NSWCA 236

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

117

Date of hearing:

28–31 March, 6 April 2022  

Counsel for the Applicant:

Mr J Mack and Mr T Bagley

Solicitor for the Applicant:

Resurgam Law Corporation

Counsel for the Respondents:

Mr A Macauley

Solicitor for the Respondents:

Kazi Portolesi Lawyers

ORDERS

NSD 529 of 2016

BETWEEN:

KWANGHO KIM

Applicant

AND:

HODGSON FARADAY PTY LIMITED ACN 130 606 987

First Respondent

TMK INDEX LIMITED ACN 123 936 336

Second Respondent

YINGJIE WANG

Third Respondent

ORDER MADE BY:	JAGOT J
DATE OF ORDER:	7 OCTOBER 2022

THE COURT ORDERS THAT:

1.The proceeding be deemed to be discontinued against the first and second respondents on and from the date of this order.

2.The further amended originating application be dismissed.

3.The applicant pay the third respondent’s costs as agreed or taxed.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1.                 OVERVIEW

1. The applicant is a member of a group seeking damages from the third respondent (now the only remaining respondent), Mr Yingjie (Jay) Wang, under s 12GF(1) of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act).

2. Mr Wang was the sole director of the former first respondent, now known as a TM Index Limited. The former second respondent, TMK Index Limited, was owned by the same holding company as that which owned TM Index. The applicant and group members are residents of South Korea. As a result of certain marketing and other information provided to the group…