Tomasetti v Brailey

(2012) 274 FLR 248; [2012] NSWCA 399

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Trade and Commerce
2. › Misleading or deceptive conduct
3. › Financial adviser
4. › Representations as to present and future matters regarding managed investment schemes
5. › Whether provision of prospectus and product disclosure statements sufficient to convey risk
6. › Obligation of claimant to prove whole of defendant's relevant conduct
7. › Whether respondent had reasonable grounds for representations as to future matters
8. › Fair Trading Act 1987 (NSW), s 42
1. Torts
2. › Negligence
3. › Breach of duty
4. › Financial advice concerning investments
5. › Whether adviser failed to apprise clients of investment risks
6. › Whether adviser negligently recommended investments as suitable for client's personal circumstances
7. › Causation
8. › Whether appellants would have proceeded with investments despite knowledge of risks
1. Torts
2. › Defences
3. › Proportionate liability
4. › Whether first respondent's acts were corporate acts of fourth respondent
5. › Whether first and fourth respondents were concurrent wrongdoers
6. › Whether liability limited
7. › Civil Liability Act 2002 (NSW), Pt 4, ss 34(2), 35(1)
1. Limitation of Actions
2. › When cause of action arises
3. › Investments in managed schemes
4. › Whether cause of action arose upon entry into investments or when loss became ascertainable
5. › Limitation Act 1969 (NSW), s 14

Quick Take

Where a financial adviser's acts are the corporate acts of the company through which the adviser operates, the adviser and the company are not 'concurrent wrongdoers' for the purposes of proportionate liability under Part 4 of the Civil Liability Act 2002 (NSW), and each is liable for 100 per cent of the loss. Causes of action for losses on managed investment schemes arise when it becomes ascertainable that the investor has suffered an overall loss, not upon entry into the investment. Damages for losses on tax-deductible investment schemes are assessable recoupments under s 20-20 of the Income Tax Assessment Act 1997 (Cth) and must be grossed-up for tax. A claimant alleging misleading conduct by a financial adviser must prove the whole of the adviser's relevant conduct, including the provision of prospectuses and product disclosure statements.