Legal Research
Cases
Mitchell Asset Management Pty Ltd v Di Pasquale

Mitchell Asset Management Pty Ltd v Di Pasquale

Link copied

Case Copied 30 May 2025 78 min read

Contents

On this page

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2022 04903

MITCHELL ASSET MANAGEMENT PTY LTD	Plaintiff
v
MARISSA DI PASQUALE	Defendant

---

JUDGE:	Cosgrave J
WHERE HELD:	Melbourne
DATES OF HEARING:	12, 16, 17, 18, 19 and 26 September 2024
DATE OF JUDGMENT:	30 May 2025
CASE MAY BE CITED AS:	Mitchell Asset Management Pty Ltd v Di Pasquale
MEDIUM NEUTRAL CITATION:	[2025] VSC 307

---

EQUITY — Fiduciary duties — Duties of company directors — Duty to act in good faith and in the best interests of the company — Whether subjective or objective test to be applied — Duty to act for a proper purpose — Duty to avoid conflicts of interest — Duty to avoid unauthorised benefit — Where director caused assignment of intellectual property to another company for nominal value — Where director caused company to incur research and development expenditure following the assignment of the intellectual property — Fiduciary duties not breached.

CONSUMER LAW — Competition and Consumer Act 2010 (Cth) sch 2 — Australian Consumer Law s 18 — Misleading or deceptive conduct — Where representations made by way of contractual warranties — Whether warranty representations were false — Whether silence amounted to misleading or deceptive conduct — Accessorial liability — Australian Consumer Law s 236(1).

EVIDENCE — Valuation of intellectual property — Expert valuation reports unsatisfactory.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M McKillop with Ms P Blackadder	Gadens
For the Defendant	Mr J Ribbands with Mr T Gorton	Walpole Johnson

HIS HONOUR:

Introduction

This case concerns the consequences of a company’s failure to repay a loan. The plaintiff, Mitchell Asset Management Pty Ltd (“MAM”), is a boutique financial services firm providing customised wealth management, investment, custody lending and trust services to clients. The defendant (“Di Pasquale”) is the sole director of Cashtivity Pty Ltd (“Cashtivity”). Initially, Di Pasquale established Cashtivity in order to develop a financial literacy tool for school students. Some years later, Di Pasquale changed the nature of the software from its focus on entrepreneurship and financial literacy to a focus on applied maths. Di Pasquale was aware that the Commonwealth government offered subsidies for research and development work performed by companies provided they satisfied certain criteria. In general terms, if a business satisfied the criteria, then it would recover a rebate of 45% of the research and development expenditure incurred in the preceding financial year. So, for example, if a business spent $1 million on eligible research and development and made no profits, then it would receive a rebate of $450,000.[1]
[1]Initially, the rebate was 45% but it later dropped to about 43.5%.

MAM lent money to Cashtivity in 2018. It lent an amount equal to approximately 80% of the anticipated rebate which Cashtivity expected to receive. MAM had a general security deed over the assets of Cashtivity but no personal guarantee from Di Pasquale or any other security.

Cashtivity did not receive…

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 Mitchell Asset Management Pty Ltd v Di Pasquale 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: [2025] VSC 307
Decision Date: 30 May 2025

CaseChat Overview and Summary

Mitchell Asset Management Pty Ltd took legal action against Di Pasquale, a director of the company, concerning fiduciary duties and misleading or deceptive conduct under the Australian Consumer Law. The Federal Court of Australia was tasked with determining whether Di Pasquale had breached fiduciary duties owed to the company and whether any misleading or deceptive conduct had occurred under the Australian Consumer Law.

The court examined the duty of good faith and the best interests of the company, considering whether a subjective or objective test applied. It also considered the duty to act for a proper purpose, avoid conflicts of interest, and avoid unauthorised benefits. The court needed to decide whether the director's actions in causing the assignment of intellectual property to another company for a nominal value and subsequent research and development expenditure breached these duties. Additionally, the court assessed whether the contractual warranties made by the company were false and whether silence amounted to misleading or deceptive conduct. The court also considered the expert valuation reports regarding the intellectual property.

The court concluded that Di Pasquale had not breached any fiduciary duties owed to the company. The director had not acted in bad faith or for an improper purpose, nor had there been any conflict of interest or unauthorised benefit. The court found that the contractual warranties were not false, and there was no misleading or deceptive conduct under the Australian Consumer Law. The unsatisfactory expert valuation reports did not affect the outcome as they were not determinative of the issues at hand.

No orders were made against Di Pasquale, as the court found that no fiduciary duties were breached and no misleading or deceptive conduct had occurred.

Orders