Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust (No 2) [2022] NSWSC 557

Supreme Court New South Wales

Medium Neutral Citation: Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust (No 2) [2022] NSWSC 557 Hearing dates: 14-21 and 24 March 2022; further submissions 25 March, 8, 22 and 29 April 2022 Date of orders: 10 May 2022 Decision date: 10 May 2022 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Proceedings to be dismissed Catchwords: CONSUMER LAW – misleading or deceptive conduct – investment in trusts established to develop two properties in Western Sydney – whether defendant trustees through their director and alleged agent made representations concerning the level of investment of other parties – whether plaintiff misled by such representation – where true level of other parties' investment revealed yet plaintiff maintained and increased its investment TRUSTS AND TRUSTEES – unit trusts established for purpose of proposed development of two properties in Western Sydney – whether unitholders failed to make required contributions – whether units had been issued at a discount – whether transactions entered without authority – whether proper accounting records maintained – whether trustees should be removed Legislation Cited: Competition and Consumer Act 2010 (Cth) Trade Practices Act 1974 (Cth) Trustee Act 1925 (NSW) Cases Cited: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf Real Money Unit Trust [2022] NSWSC 311 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Juul v Northey [2010] NSWCA 211 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494; [1998] HCA 69 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 Category: Principal judgment Parties: Gilmore Finance Pty Ltd (Plaintiff) Aesthete Pty Ltd as trustee for the Real Money Unit Trust (First Defendant) Aesthete No 3 Pty Ltd as trustee for the Hospital Precinct Unit Trust (Second Defendant) Farshad Amirbeaggi (Third Defendant) Vashti Elizabeth Conway (Fourth Defendant) Kate Elizabeth Yates (Fifth Defendant) Representation: Counsel: R D Marshall SC with S W Aspinall and T Arnold (Plaintiff) D R Pritchard SC with A F Fernon SC and A Macauley (First, Second and Third Defendants) J P Knackstredt (Fourth and Fifth Defendants)