Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76

FEDERAL COURT OF AUSTRALIA

Addenbrooke Pty Limited v Duncan (No 2) [2017] FCAFC 76 Appeal from: Addenbrooke Pty Limited v Duncan (No 6) [2015] FCA 793

File number: NSD 1001 of 2015

Judges: DOWSETT, GILMOUR AND WHITE JJ

Date of judgment: 16 May 2017

Catchwords: TRADE AND COMMERCE – appeal from the dismissal of a claim that the respondents had engaged in misleading or deceptive conduct – claim based on positive representations and, as against the first respondent, on the non-disclosure of certain matters – held, by majority, that trial Judge had not dealt with the whole of the appellant's misleading or deceptive conduct case against the first respondent and, further, that it was not possible for the Full Court to determine the whole claim on the basis of the findings made by the trial Judge. TRADE AND COMMERCE – trial Judge's finding that the appellant had not proved that it had relied on the positive misrepresentations was not conclusive of the whole of the misleading or deceptive conduct claim given that it included a claim of non-disclosure – held, by majority, that there should be a retrial of this claim before a different Judge. TRADE AND COMMERCE – appeal against the dismissal of the appellant's claim that the first respondent had engaged in unconscionable conduct upheld for the same reasons. TRADE AND COMMERCE – appeal against dismissal of the claim that the first respondent was liable as an accessory to the misleading or deceptive or unconscionable conduct of another respondent – the appellant's claim against that respondent, had, by consent, been dismissed before the trial – trial Judge did not deal with the contention of the first respondent that the dismissal meant that the appellant was estopped from pursuing the accessorial liability claim – held appropriate for this issue to be determined in the retrial. EQUITY – claim that first respondent had knowingly assisted in the breach of a constructive trust said to have arisen when the appellant paid monies in compliance with the share subscription agreement said to have been induced by the alleged misleading or deceptive conduct – held that the constructive trust did not arise. NEGLIGENCE – appellant's claim that second and third respondents had breached a duty of care – trial Judge did not determine this claim – consideration of whether appellant and second respondent were in a continuing relationship of client and investment advisor – held that the respondents did not owe the duty of care alleged. TRUSTS AND TRUSTEES – claim that the third respondent had breached a trust – claim not determined by trial Judge – held that a trust did not arise. EVIDENCE – appeal against evidence ruling of the trial Judge – consideration of the Telecommunications (Interception and Access) Act 1979 (Cth) – appeal ground dismissed – Judge did not err in that a transcript of the intercepted communication was inadmissible.