There will be judgment for the first and third defendants against the plaintiff. Unless any party applies for a different costs order within 28 days of publication of these reasons, I order the plaintiff to pay the first and third defendants’ costs of the proceedings.
Catchwords:
EVIDENCE – credibility and the reliability of evidence – contemporaneous documents – recollection of events – plaintiff’s evidence unreliable – expert evidence – expert code of conduct – partisan witness and not subject to the expert witness code of conduct – failure to call witnesses – Jones v Dunkel – cannot give rise to any inference.
TRADE AND COMMERCE– trade practices – misleading and deceptive conduct – misrepresentations – s 12BB of the Australian Securities and Investments Commission Act 2001 (Cth) – false representations and other misleading or offensive conduct – reliance on representations – Corporations Act 2001 (Cth) – accessorial liability – whether defendant must have reasonable basis for statement – seminar – marketing document – plaintiff cannot establish liability – registrable bodies – registration of managed investment schemes – scheme was a managed investment scheme – required to be registered – scheme not illegal or unlawful.
NEGLIGENCE – allegations of negligent acts and omissions in the provision of legal services – terms of retainer – solicitor’s duty of care – failure to act with due skill, care and attention – failure to make necessary enquiries – no breach established – first defendant not liable in negligence.
DAMAGES – suffered loss and damage – exemplary damages – consequential losses – reduced value of unit – reduced income – no evidence plaintiff suffered any loss or damage.
[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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AGLC
Read v Burns [2017] ACTSC 184
Case
[2017] ACTSC 184
Decision Date
CaseChat Overview and Summary
In the case of Read v Burns, the plaintiff, Read, brought proceedings against the first defendant, Burns, and the second and third defendants, associated with Burns. The plaintiff alleged breaches of trade practices, misleading and deceptive conduct, and negligence in the provision of legal services. The dispute was heard in the Federal Court of Australia. The primary issues before the court were whether the first defendant had engaged in misleading or deceptive conduct, whether the second and third defendants were vicariously liable for the actions of the first defendant, and whether the plaintiff had suffered any loss or damage as a result of the alleged conduct.
The court found that the plaintiff's evidence was unreliable and did not establish the alleged misleading or deceptive conduct on the part of the first defendant. The contemporaneous documents and expert evidence presented by the plaintiff were deemed insufficient to prove the claims. Additionally, the court held that the first defendant was not liable for negligence in the provision of legal services, as the plaintiff failed to establish a breach of duty of care. The court also ruled that the second and third defendants could not be held vicariously liable due to the lack of evidence against the first defendant. Finally, the court determined that the plaintiff had not suffered any loss or damage as a result of the alleged conduct.
As a result of the findings, the court ordered that judgment be entered in favour of the first and third defendants against the plaintiff. The court also ordered that unless any party applied for a different costs order within 28 days of the publication of these reasons, the plaintiff would be responsible for paying the first and third defendants’ costs of the proceedings.
Orders
Orders of the court
There will be judgment for the first and third defendants against the plaintiff. Unless any party applies for a different costs order within 28 days of publication of these reasons, I order the plaintiff to pay the first and third defendants’ costs of the proceedings.