McColl JA at [1] Campbell JA at [2] Macfarlan JA at [3]
Decision:
(1) The appeals of Mr Tomasetti and Tomasetti Investments Pty Ltd are dismissed.
(2) The appeal by Ms Cordony in relation to her claims against the first and fourth respondents is allowed.
(3) Set aside the judgment for the first and fourth respondents entered on 17 November 2011 in relation to the claims of Ms Cordony.
(4) Set aside the order made on 17 November 2011 that Ms Cordony pay the first and fourth respondents' costs at first instance as agreed or assessed.
(5) Remit the proceedings to the primary judge, so far as they relate to Ms Cordony's claims against the first and fourth respondents, for the purpose of:
(a) Determining the issue of whether Ms Cordony's loss was caused by the first and fourth respondents' conduct.
(b) Making such orders (including as to the costs of the proceedings at first instance) as he considers appropriate having regard to his determination of that issue and these reasons for judgment.
(6) Order Mr Tomasetti and Tomasetti Investments Pty Ltd to pay 90 per cent of the respondents' costs of the appellants' appeals.
(7) Order the first and fourth respondents to pay Ms Cordony's costs of her appeal so far as it relates to them.
(8) The first and fourth respondents to have a certificate under the Suitors' Fund Act 1951, if qualified, in relation to their costs of Ms Cordony's appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
TRADE AND COMMERCE - misleading or deceptive conduct - s 42 Fair Trading Act 1987 (NSW) - first respondent financial adviser made representations as to present and future matters regarding managed agricultural investment schemes - whether adviser adequately apprised appellants of investment risks - whether provision of prospectus and product disclosure statements was sufficient to convey risk - whether appellants proved content of conversations with adviser - obligation of a claimant to prove the whole of a defendant's relevant conduct - whether primary judge paid adequate regard to concessions made in cross-examination - reliability of concessions against interest - whether respondent had reasonable grounds for making representations as to future matters - causation - whether appellants would have proceeded with investments despite knowledge of risks - whether causation issue should be remitted to primary judge for determination
TORTS - negligence - breach of duty - financial advice concerning investments in managed agricultural investment schemes -…
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
AGLC
Tomasetti v Brailey [2012] NSWCA 399
Case
[2012] NSWCA 399
Decision Date
CaseChat Overview and Summary
This case concerned appeals from a primary judge's decision regarding claims of misleading or deceptive conduct and negligence against a financial adviser and associated entities in relation to investments in managed agricultural schemes. The appellants, Mr. Tomasetti, Tomasetti Investments Pty Ltd, and Ms. Cordony, alleged that the financial adviser made misrepresentations about the risks and suitability of these investments. The primary judge had made findings on most issues, including credit, but had not finally determined the issue of causation.
The legal issues before the Court of Appeal included whether the financial adviser had adequately apprised the appellants of the investment risks, whether the provision of prospectuses and product disclosure statements was sufficient, and whether the appellants had proven the content of their conversations with the adviser. The court also considered whether the primary judge had paid adequate regard to concessions made in cross-examination, the reliability of such concessions, and whether the respondent had reasonable grounds for making representations about future matters. Furthermore, the court had to determine whether the causation issue should be remitted to the primary judge, and if so, for what purpose. Other issues raised on appeal, though not central to the outcome, included proportionate liability, limitations, partnership, and the taxability of damages.
The Court of Appeal dismissed the appeals of Mr. Tomasetti and Tomasetti Investments Pty Ltd, upholding the primary judge's findings. However, the appeal by Ms. Cordony in relation to her claims against the first and fourth respondents was allowed. The court set aside the judgment and costs orders in favour of the first and fourth respondents concerning Ms. Cordony's claims and remitted the proceedings to the primary judge for the determination of the causation issue. The court also made orders regarding the costs of the appeals.
Orders
Orders of the court
(1) The appeals of Mr Tomasetti and Tomasetti Investments Pty Ltd are dismissed.
(2) The appeal by Ms Cordony in relation to her claims against the first and fourth respondents is allowed.
(3) Set aside the judgment for the first and fourth respondents entered on 17 November 2011 in relation to the claims of Ms Cordony.
(4) Set aside the order made on 17 November 2011 that Ms Cordony pay the first and fourth respondents' costs at first instance as agreed or assessed.
(5) Remit the proceedings to the primary judge, so far as they relate to Ms Cordony's claims against the first and fourth respondents, for the purpose of:
(a) Determining the issue of whether Ms Cordony's loss was caused by the first and fourth respondents' conduct.
(b) Making such orders (including as to the costs of the proceedings at first instance) as he considers appropriate having regard to his determination of that issue and these reasons for judgment.
(6) Order Mr Tomasetti and Tomasetti Investments Pty Ltd to pay 90 per cent of the respondents' costs of the appellants' appeals.
(7) Order the first and fourth respondents to pay Ms Cordony's costs of her appeal so far as it relates to them.
(8) The first and fourth respondents to have a certificate under the Suitors' Fund Act 1951, if qualified, in relation to their costs of Ms Cordony's appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]