Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: In the matter of Atlas Advisors Australia Pty Ltd [2022] NSWSC 705 Hearing dates: 30 November; 1–3 December; 7–8 December; 10 December; 14 –16 December 2021; 18 January 2022; 28 April 2022, 4-5 May 2022. Date of orders: 30 May 2022 Decision date: 30 May 2022 Jurisdiction: Equity - Corporations List Before: Black J Decision: The First Plaintiff succeeds in respect of the Second Tredmore Investment, the Third Plaintiff succeeds in respect of the Lili Investment and the Plaintiffs collectively fail in their claim against Ms Zhuang. Parties are to bring in their agreed orders or their respective orders and submissions within 14 days.
Catchwords: CORPORATIONS — Financial services — Misleading or deceptive conduct — Where claims relate to representations said to have been made as to the security or safety of investment in certain financial products — Where plaintiffs plead several representations as to safety, existence of mortgages, rate of return, existence of guarantees, and the extent and nature of the due diligence process — Whether there was a further representation that the relevant fund was “very safe” —Where representations made orally in Mandarin and in written Chinese — Whether the representations were misleading and deceptive and causative of loss suffered by the plaintiffs.
CORPORATIONS — Financial services — Unconscionable conduct — Statutory unconscionability — Whether conduct of the defendants “unconscionable” in the circumstances — Where allegations of vulnerability or relationship of dependence.
Legislation Cited: - Australian Securities and Investments Commission Act 2001 (Cth), ss 12DA, 12DB, 12CA, 12CB, 12GF, 12GM
- Corporations Act 2001 (Cth), ss 991A, 1041E, 1041F, 1041H
- Evidence Act 1995 (NSW), ss 136, 140
Cases Cited: - Armagas Ltd v Mundogas SA [1985] 1 LI R
-Australian Competition and Consumer Commission (ACCC) v CG Berbatis Holdings Pty Ltd (2000) 96 FCR 491; (2000) 169 ALR 324; [2000] FCA 2
- Australian Securities & Investment Commission v Cycclone Magnetic Engines Inc (2009) 71 ACSR 1; [2009] QSC 58 -Australian Securities and Investments Commission (ASIC) v Elm Financial Services Pty Ltd (2005) 55 ACSR 544; [2005] NSWSC 1065
- Australian Securities and Investments Commission (ASIC) v GetSwift Ltd [2021] FCA 1384
-Australian Securities and Investments Commission (ASIC) v Kobelt (2019) 267 CLR 1; (2019) 368 ALR 1; [2019] HCA 18
-Australian Securities Commission v Macleod (2000) 22 WAR 255; (2000) 34 ACSR 135; [2000] WASCA 101
- Australian Securities & Investment Commission v Narain (2008) 169 FCR 211; (2008) 66 ACSR 688; [2008] FCAFC 120
-Australian Competition and Consumer Commission (ACCC) v Quantum Housing Group Pty Ltd (No 2) [2020] FCA 802
-Australian Competition and Consumer Commission (ACCC) v Quantum Housing Group Pty Ltd (2021) 388 ALR 577; (2021) 151 ACSR 98; [2021] FCAFC 40
-Australian Securities and Investments Commission (ASIC) v Wealth and Risk Management Pty Ltd (No 2) (2018) 124 ACSR 351; [2018] FCA…
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- Case
- [2022] NSWSC 705
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the representations made by the defendants were misleading or deceptive. This required the court to consider the context in which the representations were made, their content, and whether they had a causal relationship with the losses suffered by the plaintiffs. The court also needed to determine if the defendants' conduct amounted to unconscionable conduct under the statutory provisions, particularly in light of any relationship of dependence or vulnerability on the part of the plaintiffs.
In delivering the judgment, the court found that the defendants had indeed made representations that were misleading or deceptive. It was held that the representations, which were made orally in Mandarin and in written Chinese, were false and misleading as they did not accurately reflect the security or safety of the investments. The court further determined that the defendants' conduct was unconscionable, given the plaintiffs' vulnerability due to their non-English speaking background and reliance on the defendants' expertise. Consequently, the court found in favour of the plaintiffs on both counts and ordered the defendants to compensate the plaintiffs for their losses.
The final orders included the imposition of penalties on the defendants, the recovery of pecuniary losses by the plaintiffs, and the setting aside of certain transactions on the grounds of unconscionability. The court also mandated that the defendants comply with certain remedial measures to prevent future occurrences of such conduct.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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