Braham v ACN 101 482 580 Pty Ltd

[2020] VSCA 108

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Consumer Law
2. › Misleading or deceptive conduct
3. › Conduct by solicitor
4. › Preparation of documents for client
5. › Whether preparation of partnership agreement amounted to representation to non-client investor as to compliance with taxation ruling
6. › Whether non-disclosure of qualifying fact
7. › Australian Consumer Law, s 18
1. Consumer Law
2. › Misleading or deceptive conduct
3. › Conduct by solicitor
4. › Representation to client
5. › Whether preparation of partnership agreement conveyed representation to client promoter as to compliance with taxation ruling
6. › Alleged indirect causation of loss to investor
1. Consumer Law
2. › Misleading or deceptive conduct
3. › Relevance of solicitor's retainer
4. › Whether scope of retainer precludes finding of misleading or deceptive conduct outside scope of retainer
5. › Extent of retainer not dispositive but relevant contextual feature
1. Consumer Law
2. › Misleading or deceptive conduct
3. › Causation
4. › Direct and indirect causation mechanisms
5. › Active indirect causation through third party reliance

Quick Take

The preparation and proffering of a legal document (such as a partnership agreement) by a solicitor does not, without more, constitute a representation to non-client third parties that the document or the structure it creates will achieve a particular legal or tax outcome. The scope of the solicitor's retainer, while not dispositive, is a relevant contextual feature in assessing whether the conduct is misleading or deceptive. Where the retainer is limited and the solicitor has not been retained to advise on the efficacy of the structure, the limited nature of the retainer weakens rather than strengthens a misrepresentation case based on the preparation of the document.