Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Tredmore Pty Ltd v Atlas Advisors Australia Pty Ltd [2023] NSWCA 60 Hearing dates: 8 March 2023 Date of orders: 31 March 2023 Decision date: 31 March 2023 Before: Ward P at [1];
Meagher JA at [2];
Gleeson JA at [93]Decision: 1. Appeal dismissed.
2. Cross-appeal dismissed.
3. Appellants pay 50% of the first respondent's costs of the proceedings (being the appeal and cross-appeal).
4. Grant leave to either party to file a notice of motion seeking to have the question of costs argued and determined otherwise than in accordance with order 3. Any such motion should be filed within 14 days of the making of these orders, and should be determined with the benefit of written submissions, but otherwise on the papers.
Catchwords: CORPORATIONS – financial services – misleading or deceptive conduct – whether oral representations misleading or deceptive – where claim relates to alleged oral representations in Mandarin as to safety of investment in financial products relating to property development – whether oral representations made to effect that investment had little or no risk – where borrower did not own properties to be developed or have contracts in place for their acquisition or development
CORPORATIONS – financial services – misleading or deceptive conduct – whether written representation misleading or deceptive – where claim relates to alleged written representation in Mandarin as to the safety of financial products – where primary judge found use of Mandarin term “anquan” misleading or deceptive insofar as it described investment – where borrower did not own properties to be developed or have contracts in place for their acquisition or development
Legislation Cited: Corporations Act 2001 (Cth), ss 761G, 761GA, 1041H
Cases Cited: Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31
Texts Cited: Nil
Category: Principal judgment Parties: Tredmore Pty Ltd as trustee for the Xue Family Trust (First Appellant/First Cross-Respondent)
Lijuan Xue (Second Appellant/Second Cross-Respondent)
Lili Xue (Third Appellant/Third Cross-Respondent)
Atlas Advisors Australia Pty Ltd (First Respondent/Cross-Appellant)
Wenyan Zhuang (also known as Fiona Zhuang) (Second Respondent)Representation: Counsel:
Solicitors:
David Weinberger with Rhea Thrift (Appellants/Cross-Respondents)
Patrick Knowles SC with Sarah Danne (Respondents/Cross-Appellants)
Squire Patton Boggs (Appellants/Cross-Respondents)
Watson Mangioni Lawyers (Respondents/Cross-Appellants)
File Number(s): 2022/186871 Publication restriction: Nil Decision under appeal
- Court or tribunal:
- Supreme Court of New South Wales
- Jurisdiction:
- Equity Division – Corporations List
- Citation:
- Date of Decision:
- 30 May 2022
- Before:
- Black J
- File Number(s):
- 2020/71911
Decision Under Appeal
HEADNOTE
[This headnote is not to be read as part of the judgment]
In the proceedings below, the appellants claimed damages for alleged multiple instances of misleading or deceptive conduct by the respondents in relation to advice…
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- AGLC
- Tredmore Pty Ltd v Atlas Advisors Australia Pty Ltd [2023] NSWCA 60
- Case
- [2023] NSWCA 60
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine whether the oral and written representations made by the lender, particularly the use of the Mandarin term "anquan" (which can translate to "safe" or "secure"), were misleading or deceptive in the context of the financial products offered. This involved assessing whether the representations accurately conveyed the level of risk associated with the investment, given the borrower's lack of secured property interests or development contracts.
The Court of Appeal dismissed the borrower's appeal and the lender's cross-appeal. The reasoning applied by the court, while not fully detailed in the provided text, upheld the primary judge's finding that the use of the term "anquan" in relation to the investment was misleading or deceptive. This suggests the court considered the representations to have created an unjustified impression of safety or security, failing to adequately disclose the inherent risks stemming from the borrower's undeveloped position regarding the underlying property.
Consequently, the appeal and cross-appeal were dismissed. The appellants were ordered to pay 50% of the first respondent's costs for the appeal and cross-appeal, with leave granted for either party to seek a different determination of costs within 14 days, to be decided on the papers with written submissions.
Orders
Orders of the court
1. Appeal dismissed.
2. Cross-appeal dismissed.
3. Appellants pay 50% of the first respondent's costs of the proceedings (being the appeal and cross-appeal).
4. Grant leave to either party to file a notice of motion seeking to have the question of costs argued and determined otherwise than in accordance with order 3. Any such motion should be filed within 14 days of the making of these orders, and should be determined with the benefit of written submissions, but otherwise on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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