Xu v Salter Brothers Asset Management Pty Ltd [2025] FCA 89

FEDERAL COURT OF AUSTRALIA Xu v Salter Brothers Asset Management Pty Ltd [2025] FCA 89 VID122 of 2022 File numbers: VID123 of 2022 VID124 of 2022

Judgment of: MCELWAINE J

Date of judgment: 19 February 2025

FINANCIAL PRODUCTS - misleading or deceptive conduct concerning the terms of complying investments of at least $5 million as required to be made by applicants pursuant to the Significant Investor Visa Program- ss 12 DA and 12DB of the ASIC Act and 1041H of the Corporations Act- trial of three separate claims- oral and written representations relied on. MISLEADING OR DECEPTIVE CONDUCT - whether oral representations as contended were made- whether written representations were made in context of documents provided in English to applicants fluent only in Mandarin- whether conduct was in any event misleading or likely to mislead or deceive-relevance of ability of applicants to have documents translated and or to take independent financial advice before making financial investments-whether core claims that complying investments could be redeemed after four years made out. Catchwords: STATUTORY UNCONSCIONABLE CONDUCT -s 12CB ASIC Act-whether respondents engaged in unconscionable conduct in providing Information Memoranda for financial products only in English to a Mandarin speaking class of prospective applicants- whether applicants were vulnerable- whether unconscientious advantage taken-relevance of ability of applicants to obtain translations. CAUSATION - whether applicants relied on misleading conduct as alleged-whether reliance on conduct is a necessary element-distinction between direct and indirect causation-whether causation is established in circumstances where applicants at the time made alternative complying investments with similar risks. DAMAGES - whether failure of applicants to establish that investments as made have no current value precludes alternative claims raised at a late stage-methodology for calculation of damages when redemption of investments is delayed- whether refund orders may have been made pursuant to s 12GM of the ASIC Act. CONTRIBUTORY NEGLIGENCE - whether if claims had otherwise succeeded, any amount of damages should be reduced on account of any failure by the applicants to take reasonable care.