Equuscorp Pty Ltd v Hopkins, Ann [1998] FCA 1574

FEDERAL COURT OF AUSTRALIA TRADE PRACTICES – whether financier was a party to misleading conduct by promoter of pine plantation scheme within the meaning of s 75B of the Trade Practices Act. EVIDENCE – whether inferences drawn by the trial judge were open on the evidence.

Trade Practices Act 1974 (Cth), s 75B Jones v Dunkel (1959) 101 CLR 298, applied

EQUUSCORP PTY LIMITED v ANN HOPKINS NG 656 of 1998 HILL, RD NICHOLSON & EMMETT JJ SYDNEY 10 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 656 of 1998

BETWEEN: EQUUSCORP PTY LIMITED

Appellant

AND: ANN HOPKINS

Respondent

JUDGES: HILL, rd NICHOLSON & EMMETT JJ

DATE: 10 december 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT THE COURT: The respondent ("Dr Hopkins") commenced proceedings in the Court in which she claimed damages and other relief arising from her becoming involved, at the end of the 1991 financial year, in a pine plantation scheme promoted by Seymour Softwoods Limited ("Seymour"). The scheme was known as the "Seymour Softwoods No. 3 Trust" ("the Trust") and was established pursuant to a deed of trust dated 17 May 1991 between Seymour and National Mutual Trustee Limited ("National Mutual"). The appellant, Equuscorp Pty Limited ("Equus"), formerly known as Equus Financial Services Pty Limited, is a financier. Dr Hopkins contended that Equus and Seymour, together with two companies associated with Seymour, Sintoff Pty Limited ("Sintoff") and Berrema Finance Pty Limited ("Berrema"), engaged in conduct in contravention of section 52 of the Trade Practices Act 1974 (Cth) and she sought relief under sections 82 and 87 of the Trade Practices Act. A judge of the Court found that misleading representations were made at a seminar attended by Dr Hopkins on 25 June 1991. Those representations related both to the availability of finance from Equus and the viability of the pine plantation scheme. His Honour found that the representations in relation to both matters were false and misleading. Accordingly, his Honour made an order for damages in favour of Dr Hopkins pursuant to section 82 of the Trade Practices Act and declared that certain agreements entered into by Dr Hopkins are void ab initio. His Honour held that Dr Hopkins was induced to enter into those agreements as a result of misleading conduct on the part of Seymour and its associates. The agreements were between Dr Hopkins on the one hand and Seymour, Sintoff and Berrema on the other. However, the trial judge also found that Equus was a party to the misleading representations said to have been made by Seymour and its associates. His Honour held that Equus was relevantly a party to that misleading conduct within the meaning of section 75B of the Trade Practices Act. Accordingly, his Honour held that Equus, Seymour, Sintoff and Berrema were all jointly and severally liable to Dr Hopkins in respect of the contraventions of the Trade Practices Act which he found had been committed. His Honour relevantly ordered that: 1. Seymour, Sintoff, Berrema and Equus jointly and severally pay Dr Hopkins the sum of $118,211.63. 2. Seymour, Sintoff, Berrema and Equus pay Dr Hopkins' costs of and incidental to the proceedings. 3. The cross claim of Equus against Dr Hopkins be dismissed with costs.