Bert v Red 5 Limited

[2017] QCA 233

Queensland Court of Appeal

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Interrogate

Catchwords

1. Corporations
2. › Financial services and markets
3. › Market misconduct and other prohibited conduct
4. › Misleading, deceptive or unconscionable conduct
5. › Representations as to purpose of capital raising
6. › Whether director misled shareholder about purpose of capital raising
7. › Whether trial judge erred in credit findings
1. Corporations
2. › Financial services and markets
3. › Disclosure
4. › Continuous disclosure obligations
5. › Whether company failed to disclose material information about groundwater in mine
6. › Whether information already known to market
7. › Corporations Act 2001 (Cth), s 674
1. Corporations
2. › Financial services and markets
3. › Market misconduct and other prohibited conduct
4. › Misleading, deceptive or unconscionable conduct
5. › Statements regarding pit dewatering
6. › Whether statements were misleading or deceptive in context
1. Appeal
2. › General civil appeal
3. › Appellate review of credit findings
4. › Whether appellate court should disturb trial judge's findings based on credibility of witnesses
5. › Whether something points decisively to error

Quick Take

An appellate court will not disturb a trial judge's credit findings where the available materials support the assessment, including the inherent improbability of the rejected version, changes in the witness's account between pleading and oral evidence, absence of contemporaneous complaint, and absence of any motive for the alleged deception. For continuous disclosure under s 674, information about a known problem does not require disclosure where the market is already aware of the problem and the relevant question is whether the company has plans to address it.