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Tomasso v IG Markets Ltd

Tomasso v IG Markets Ltd

Case [2025] WASC 338 21 August 2025

Unfair Contract Terms

Corporations & Securities Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TOMASSO -v- IG MARKETS LTD [2025] WASC 338
CORAM:   HILL J
HEARD:   18 - 22 MARCH 2024
DELIVERED          :   21 AUGUST 2025
FILE NO/S:   COR 103 of 2022
BETWEEN:   ADAM ANTHONY TOMASSO
Plaintiff
AND
IG MARKETS LTD
Defendant
IG MARKETS LTD
Plaintiff by counterclaim
ADAM ANTHONY TOMASSO
Defendant by counterclaim

Catchwords:

Corporations - Unfair contract terms - Trading on test market over two days - Correction to statement to void these transactions in reliance on term of agreement - Whether term is an unfair contract term under s 12BG of Australian Investments and Securities Commission Act 2001 (Cth) - Whether term creates significant imbalance - Whether term reasonably necessary to protect legitimate interests of defendant - Consideration of proportionality and alternative methods of protecting the defendant's interests in assessing whether term is reasonably necessary - Whether term would cause financial or non-financial detriment if relied upon

Corporations - Unfair contract terms - Whether term defines main subject matter of contract - Whether disputed transactions are 'transactions' within the meaning of the agreement - Proper construction of agreement

Corporations - Unfair contract terms - Whether term (or part of it) should be severed - Whether defendant's rights under term are composite or separate rights - Whether court can redraft clause

Contract - Unilateral mistake - Whether transactions are separate contracts - Whether defendant entered into transactions under serious mistake - Whether plaintiff aware of defendant's mistake - Whether plaintiff’s conduct warrants intervention by equity

Corporations - Relief - Whether declaration should be made that term is an unfair contract term

Legislation:

Australian Investments and Securities Commission Act 2001 (Cth) s 12BA, s 12BF, s 12BG, s 12BI, s 12BK, s 12GND

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	M J Sims SC
Defendant	:	J Garas SC & M Forgacs
Plaintiff by counterclaim	:	J Garas SC & M Forgacs
Defendant by counterclaim	:	M J Sims SC

Solicitors:

Plaintiff	:	Chew & Matthews
Defendant	:	King & Wood Mallesons
Plaintiff by counterclaim	:	King & Wood Mallesons
Defendant by counterclaim	:	Chew & Matthews

Cases referred to in decision:

Australian Competition and Consumer Commission v ACN 117 372 915 Pty Ltd (in liq) [2015] FCA 368
Australian Competition and Consumer Commission v Ashley & Martin Pty Ltd [2019] FCA 1436
Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited [2015] FCA 1204
Australian Competition and Consumer Commission v Geowash Pty Ltd (subject to Deed of Company Arrangement) [No 3] [2019] FCA 72; (2019) 368 ALR 441
Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224
Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (No 3) [2021] FCA 347; (2021) 153 ACSR 347
Australian Securities and Investment Commission v AGM Markets Pty Ltd (in liq) [No 4] [2020] FCA 1499; (2020) 148 ACSR 511
Australian Securities and Investments Commission v Bendigo and Adelaide Bank Ltd…

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.

Continue reading Tomasso v IG Markets Ltd

Details

AGLC: Tomasso v IG Markets Ltd [2025] WASC 338
Case: [2025] WASC 338
Decision Date: 21 AUGUST 2025

CaseChat Overview and Summary

In Tomasso v IG Markets Ltd, the plaintiff, Tomasso, sued the defendant, IG Markets Ltd, alleging that a term in their trading agreement was unfair. The dispute centred on transactions Tomasso made on a test market over two days, which IG Markets subsequently attempted to void by correcting a statement. Tomasso argued that this term was an unfair contract term under section 12BG of the Australian Investments and Securities Commission Act 2001 (Cth), creating a significant imbalance in the agreement. The court had to decide whether the term was reasonably necessary to protect IG Markets' legitimate interests and whether it would cause financial or non-financial detriment if relied upon.

The court examined whether the term defined the main subject matter of the contract and whether the disputed transactions were 'transactions' within the agreement's meaning. It also considered whether the term should be severed or whether the court could redraft the clause. Additionally, Tomasso raised the possibility of a unilateral mistake in the formation of the contract and whether equity should intervene. The court assessed the proportionality of the term, IG Markets' legitimate interests, and alternative methods of protecting these interests. The court also considered whether the defendant's rights under the term were composite or separate rights.

The court ruled that the term in question was not an unfair contract term. It found that the term was not reasonably necessary to protect IG Markets' legitimate interests, as the term created a significant imbalance in the agreement. The court also concluded that the term would cause financial detriment if relied upon. The court held that the term did not define the main subject matter of the contract and that the disputed transactions were not 'transactions' within the agreement's meaning. The court found that the term should not be severed and could not redraft the clause. The court rejected Tomasso's argument of unilateral mistake and found that equity did not warrant intervention. The court further held that the term did not create separate rights, and the defendant's rights under the term were not composite.

The court made a declaration that the term was not an unfair contract term. The court did not order any other relief, as it found that the term did not create a significant imbalance in the agreement and was not reasonably necessary to protect IG Markets' legitimate interests. The court did not consider it appropriate to order any other relief, as it found that the term did not cause financial or non-financial detriment if relied upon. The court did not make any orders regarding the disputed transactions, as it found that they were not 'transactions' within the agreement's meaning.

Orders