Stuart Klees v M101 Holdings Pty Ltd [2021] NSWSC 182

Supreme Court New South Wales

Medium Neutral Citation: Stuart Klees v M101 Holdings Pty Ltd [2021] NSWSC 182 Hearing dates: 8, 9 and 25 February 2021 Decision date: 05 March 2021 Jurisdiction: Equity - Commercial List Before: Hammerschlag J Decision: Summons dismissed Catchwords: CONSUMER LAW – FINANCIAL SERVICES – Australian Securities and Investments Commission Act 2001 ss 12DA(1), 12GF – Corporations Act 2001 ss 79, 917E – claim for damages for misleading or deceptive conduct by the first, second and third defendants consisting of misrepresentations allegedly made in connection with the issue of unsecured redeemable promissory notes issued by the first defendant that the notes were secured, would be repayable after 3 months and the plaintiff could have early repayment if he wanted it – claim that the fourth defendant was a person involved in the contravention because he had actual knowledge of the falsity of the representations and intentionally participated in the misleading or deceptive conduct HELD – that misrepresentations not established or established to be misleading or deceptive – that allegations against fourth defendant not made out HELD – no damages established because the plaintiff did not show that he would not have invested in the notes otherwise and that it is more probable than not that he would have anyway HELD – plaintiff did not establish quantum of his loss PRACTICE AND PROCEDURE – observations on the proper pleading of misleading or deceptive conduct – application to reopen to lead further evidence and to amend to claim different relief – application declined Legislation Cited: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (NSW) Cases Cited: Adams v Morellini [2010] WASC 61 Australian Securities and Investments Commission v M101 Nominees Pty Ltd [2020] 147 ACSR 537 Cackett v Keswick [1902] 2 Ch 456 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 Chappel v Hart (1998) 195 CLR 232 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 March v E. & M.H. Stramare Pty Limited (1991) 171 CLR 506 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Limited (2010) 241 CLR 357 Morellini v Adams [2011] WASCA 84 Potts v Miller (1940) 64 CLR 282 Rosenberg v Percival (2001) 205 CLR 434 Sidhu v Van Dyke (2014) 251 CLR 505 Stewart v The Australian and New Zealand Banking Group Limited [2020] NSWSC 1787 Swiss Re International SE v Simpson (2018) 354 ALR 607 Travel Compensation Fund v Tambree (t/as R Tambree and Associates) and Others (2005) 224 CLR 627 Troulis v Vamvoukakis [1998] NSWCA 237 Wallace v Kam (2013) 250 CLR 375 Category: Principal judgment Parties: Stuart John Klees – Plaintiff M101 Holdings Pty Ltd – First Defendant Australian Income Solutions Pty Ltd trading as Mayfair Wealth Partners Pty Ltd – Second Defendant Quattro Capital Group Pty Ltd – Third Defendant Devin O'Keefe – Fourth Defendant Representation: Counsel: D. Robertson – Plaintiff T.S. Hale SC with D. Robertson – Plaintiff (25 February 2021) P. Afshar – Third Defendant M. Cleary – Fourth Defendant