Elanor Funds Management Ltd v Alceon Group Pty Ltd [2023] FCA 1291

Federal Court of Australia Elanor Funds Management Ltd v Alceon Group Pty Ltd [2023] FCA 1291 File number(s): QUD 404 of 2021

Judgment of: MCELWAINE J

Date of judgment: 30 October 2023

Catchwords: AUSTRALIAN CONSUMER LAW – where applicant alleges misleading and deceptive conduct on the part of the respondents in relation to the sale of Bluewater Square Shopping Centre – where applicant contends express and implied representations were made as to the commencement date of certain leases, whether certain tenants were in arrears and the rental return of the Centre – where applicant is a sophisticated investor and extensive due diligence undertaken – a no transaction case claiming pure economic loss as the difference between acquisition price of the Centre and true value at time of purchase – misleading and deceptive conduct as alleged not established – conduct in certain respects was not engaged in and in other respects was not objectively misleading or deceptive or likely to mislead or deceive – in any event, applicant fails to prove reliance and fails to prove that damage was suffered – applicant's expert evidence does not establish difference in value to prove that the applicant suffered damage as an essential element of the claim EVIDENCE – where expert valuer engaged for trial was previously engaged by applicant for mortgagee valuation – where expert took directions from applicant when drafting valuation – expert not truly independent, evidence afforded less weight EVIDENCE – s 286 of the Corporations Act 2001 (Cth) – what amounts to a financial record – not all business-related correspondence is a financial record