Amadio Pty Ltd & Anor v Henderson, Russell Fraser & Ors [1998] FCA 823

FEDERAL COURT OF AUSTRALIA CORPORATIONS LAW - prescribed interests - offer of interests in partnership formed to acquire office building - scheme involved vendor finance - payment by vendor of fee to promoter - application by purchasers for declaration that scheme contravened 'prescribed interest' provisions of Companies Code - whether scheme involved an offer or issue to the public of a prescribed interest - consequences of an offer of a prescribed interest to the public EQUITY - illegality - statutory intention to exclude restitutionary relief - principles governing - whether liability to contribute PARTNERSHIP - existence of partnership - when it came into existence - effect of attorney executing the deed of partnership after acquiring the partnership property NEGLIGENCE - breach of duty - liability of solicitor - determining identity of clients - scope of retainer - to whom duty was owed - failure to advise as to absence of "ratchet" clause - distinction between legal and financial advice - causation - whether loss suffered was foreseeable at the time of breach of duty NEGLIGENCE - duty of care - accountants prepared cashflows on assumptions provided by promoters - whether accountants owed duty to clients of promoters to investigate assumptions TRADE PRACTICES - misleading and deceptive conduct - misrepresentation - breach of duty of care - reliance and causation - question of fact TORT - contribution - liability for negligence and misleading or deceptive conduct - basis for assessing entitlement to contribution INSURANCE - professional indemnity - whether the claims occurred in the course of professional business - exclusion from liability of claims in respect of advice given regarding an investment facility or service in which assured holds direct or indirect financial interest - meaning of "investment facility or service" - entitlement to commission a financial interest – meaning of direct or indirect financial interest DAMAGES - claims for restitution or damages where claim relates to the same loss - whether alternative or cumulative remedies - election where alternative remedies - reduction of damages awarded by amount of restitutionary payment made COSTS - indemnity costs - court's discretion WORDS AND PHRASES - "investment facility or service" - "direct or indirect financial interest"